[Senate Hearing 107-892]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-892

       APPLYING THE WAR POWERS RESOLUTION TO THE WAR ON TERRORISM

=======================================================================

                                HEARING

                               before the

   SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 17, 2002

                               __________

                          Serial No. J-107-74

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah,
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

   Subcommittee on the Constitution, Federalism, and Property Rights

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont            STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          MITCH McCONNELL, Kentucky
                 Robert Schiff, Majority Chief Counsel
                 Garry Malphrus, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
Hatch, Hon. Orrin, a U.S. Senator from the State of Utah.........    80
Thurmond, Strom, a U.S. Senator from the State of South Carolina.    96

                               WITNESSES

Fisher, Louis, Senior Specialist in Separation of Powers, 
  Congressional Research Service, Library of Congress, 
  Washington, D.C................................................    13
Frye, Alton, Presidential Senior Fellow and Director, Program on 
  Congress on Foreign Policy, Council on Foreign Relations, 
  Washington, D.C................................................    31
Glennon, Michael, Professor of Law and Scholar in Residence, 
  Woodrow Wilson International Center for Scholars, Washington, 
  D.C............................................................    54
Kmiec, Douglas, Dean of the Columbus School of Law, Catholic 
  University of America, Washington, D.C.........................    23
Stromseth, Jane, Professor of Law, Georgetown University Law 
  Center, Washington, D.C........................................    46
Wedgwood, Ruth, Edward B. Burling Professor of International Law 
  and Diplomacy, Yale Law School and Paul H. Nitze School of 
  Advanced International Studies, Baltimore, MD..................    38
Yoo, John, Deputy Assistant Attorney General, Office of Legal 
  Counsel, U.S. Department of Justice, Washington, D.C...........     7

                         QUESTIONS AND ANSWERS

Responses to Questions from Senator Thurmond by:
    Fisher, Louis................................................    85
    Frye, Alton..................................................    82
    Glennon, Michael J...........................................    88
    Stromseth, Jane..............................................    90

                       SUBMISSION FOR THE RECORD

American Civil Liberties Union, submitted by Timothy H. Edgar, 
  Legislative Counsel, Washington, D.C...........................     5

 
       APPLYING THE WAR POWERS RESOLUTION TO THE WAR ON TERRORISM

                              ----------                              


                       WEDNESDAY, APRIL 17, 2002

                              United States Senate,
                          Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 2:00 p.m., in 
Room SD-216, Dirksen Senate Office Building, Hon. Russ 
Feingold, chairman of the subcommittee, presiding.
    Present: Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Chairman Feingold. The subcommittee will come to order.
    And I would like to start by thanking all the witnesses 
here for joining us. I will introduce each witness in just a 
few minutes.
    But in general, I must say that I am very pleased to have 
this opportunity to discuss constitutional war powers with such 
a very distinguished group of legal commentators.
    Today the Constitution Subcommittee will focus on one of 
the most complicated but ultimately one of the most important 
constitutional questions confronting the country as we respond 
to the atrocities of September 11th. We will consider the 
balance of war powers authority under the Constitution as it 
relates to our fight against terrorism. We will consider, in 
short, who decides under our Constitution when the United 
States will go to war.
    This is no easy issue, but it is one that I think Congress 
is duty-bound to address.
    This discussion begins with a remarkable example of 
cooperation and respect between the two branches of government 
in exercising shared war powers authority. Before President 
Bush ordered U.S. military troops into armed conflict to 
respond to the attacks of September 11th, he took an important 
and constitutionally mandated step: He asked for and received 
the consent of Congress. And I supported that resolution.
    Senate Joint Resolution 23, which was passed by both houses 
of Congress and signed into law by the President, provides the 
President with statutory authorization to prevent future acts 
of terrorism by responding with all necessary and appropriate 
force against those responsible for the September 11th attacks 
on the United States.
    In signing the Use of Force Resolution, the President 
stated that Congress ``acted wisely, decisively, and in the 
finest traditions of our country.'' And I could not agree more.
    The resolution demonstrated that Congress still has the 
capacity and the dedication to fulfill its constitutionally 
mandated responsibility and in so doing to unify the Nation in 
a time of national crisis.
    In fact, I was very proud to have had the opportunity to 
support that resolution. And on September 14th, I commended the 
President on the floor of the Senate for recognizing the 
constitutional role of Congress in authorizing a military 
response to September 11th.
    I also noted that it was particularly important that the 
resolution explicitly abided by and invoked the 1973 War Powers 
Resolution.
    Through this hearing now we will have an opportunity to 
explore in more concrete legal terms how the War Powers 
Resolution applies to the use of force authorization. 
Specifically, we will consider how the War Powers Resolution 
must shape our national decision-making process as Congress and 
the President make tough choices about our future military 
priorities in responding to terrorist threats.
    The War Powers Resolution recognizes the shared 
constitutional responsibilities of both President and the 
Congress to make critical decisions concerning the introduction 
of U.S. armed forces into hostilities. The War Powers 
Resolution calls for more than just a one-time authorization 
from Congress to send our forces into battle. By recognizing 
Congress as custodian of the authority to declare war or 
otherwise to provide statutory authority to send our troops 
into harm's way, the War Powers Resolution also demands regular 
and meaningful consultations between the two branches of 
government, both to begin and to sustain our military 
engagements.
    As our founders and many subsequent commentators have 
recognized, the separation of powers in this area wisely forces 
us to develop a broad national consensus before placing our 
fellow citizens in harm's way.
    And as we have seen time and again, the United States is 
indeed the most formidable military force on this planet, 
provided our forces and soldiers are entrusted with a clear 
military goal and through required congressional authorization 
with a popular mandate to back them up.
    The effectiveness to date of our military campaign to 
respond to the attacks of September 11th demonstrates that our 
Nation and our military operate at the zenith of moral, 
political, and military might, when acting under constitutional 
authority and with a defined, democratic mandate.
    Now the President has suggested that the military campaign 
may one day expand to other theaters of operation. Indeed the 
news is rife with speculation about future U.S. military 
targets. Given the complex nature of the threat that confronts 
us, more expansive responses may well be necessary.
    But this hearing will not respond to speculation about any 
future operations. Instead this hearing is meant to consider 
how these decisions will be made.
    Let me be clear here. We need not consider today the 
relative merits or risks of any current or future military 
operation. Such policy discussions are important. But this 
hearing will consider as a first principle the constitutional 
framework by which all major war powers decisions must 
ultimately be made if we are to respect the Constitution and 
maintain our unity of purpose in our ongoing response to 
terrorism.
    I would ask our witnesses therefore to focus their 
attention on two overarching questions as we proceed with this 
discussion.
    First, I would ask our witnesses to reflect on the 
requirements of the standing congressional use of force 
authorization for the events of September 11th and when, within 
the limits of the Constitution and War Powers Resolution, new 
authorizations or consultations would be required as we expand 
our military operations.
    Second, I would also ask the witnesses here to consider how 
Congress and the administration might implement a system of 
more meaningful consultations as we move forward in what could 
become a long and complicated conflict waged on a variety of 
fronts in a number of countries.
    The War Powers Resolution has been set in motion in our 
present response to terrorism. And Congress has taken an 
important step to reassert its constitutional responsibility in 
this area. Now Congress and the President have a chance to 
balance the power to wage war in the way that the War Powers 
Resolution dictates and in the way that the Framers of the 
Constitution intended.
    Such cooperation preserves our constitutional structure. It 
also increases the moral authority of the United States to act 
forcefully. Given the unprecedented nature of the threat 
confronting us, a powerful and constitutional unified response 
remains essential.
    And I look forward to the guidance that our witnesses today 
will give us.
    [The prepared statement of Chairman Feingold follows:]

    Statement of Hon. Russell D. Feingold, a U.S. Senator from the 
                           State of Wisconsin

    I want to start by thanking all of the witnesses here for joining 
us. I will introduce each witness in just a few minutes, but in 
general, I must say that I am very pleased to have this opportunity to 
discuss constitutional war powers with such a distinguished group of 
legal commentators.
    Today the Constitution Subcommittee will focus on one of the most 
complicated but ultimately one of the most important constitutional 
questions confronting this country as we respond to the atrocities of 
September 11. We will consider the balance of war powers authority 
under the Constitution as it relates to our fight against terrorism. We 
will consider, in short, who decides, under our Constitution, when the 
United States will go to war. This is no easy issue, but it is one that 
Congress is duty-bound to address.
    This discussion begins with a remarkable example of cooperation and 
respect between the two branches of government in exercising shared war 
powers authority. Before President Bush ordered U.S. military troops 
into armed conflict to respond to the attacks of September 11, he took 
an important and constitutionally mandated step: He asked for and 
received the consent of Congress. I supported that resolution.
    Senate Joint Resolution 23, which was passed by both Houses of 
Congress and signed into law by the President, provides the President 
with statutory authorization to prevent future acts of terrorism by 
responding with all necessary and appropriate force against those 
responsible for the September 11 attacks on the United States. In 
signing the use-of-force resolution, the President stated that Congress 
``acted wisely, decisively, and in the finest traditions of our 
country.'' I could not agree more. The resolution demonstrated that 
Congress still has the capacity and the dedication to fulfill its 
constitutionally mandated responsibility, and in so doing to unify the 
Nation in a time of national crisis.
    I was very proud to have had the opportunity to support that 
resolution, and on September 14, I commended the President on the floor 
of the Senate for recognizing the constitutional role of Congress in 
authorizing a military response to September 11. I also noted that it 
was particularly important that the resolution explicitly abided by and 
invoked the 1973 War Powers Resolution. Through this hearing, we now 
have an opportunity to explore in more concrete legal terms how the War 
Powers Resolution applies to the use-of-force authorization. 
Specifically, we will consider how the War Powers Resolution must shape 
our national decisionmaking process as Congress and the President make 
tough choices about our future military priorities in responding to 
terrorist threats.
    The War Powers Resolution recognizes the shared constitutional 
responsibilities of both the President and the Congress to make 
critical decisions concerning the introduction of U.S. Armed Forces 
into hostilities. The War Powers Resolution calls for more than just a 
one-time authorization from Congress to send our forces into battle. By 
recognizing Congress as custodian of the authority to declare war, or 
otherwise to provide statutory authority to send our troops into harm's 
way, the War Powers Resolution also demands regular--and meaningful--
consultations between the two branches of government both to begin and 
to sustain our military engagements.
    As our founders and many subsequent commentators have recognized, 
the separation of powers in this area wisely forces us to develop a 
broad national consensus before placing our fellow citizens in harm's 
way. And as we have seen time and again, the United States is indeed 
the most formidable military force on this planet, provided our 
soldiers are entrusted with a clear military goal, and through required 
Congressional authorization, with a popular mandate to back them up. 
The effectiveness to date of our military campaign to respond to the 
attacks of September 11 demonstrates that our Nation and our military 
operate at the zenith of moral, political, and military might when 
acting under Constitutional authority and with a defined democratic 
mandate.
    The President has suggested that the military campaign may 1 day 
expand to other theaters of operation. Indeed, the news is rife with 
speculation about future U.S. military targets. Given the complex 
nature of the threat that confronts us, more expansive responses may 
well be necessary. But this hearing will not respond to speculation 
about any future operations. Instead, this hearing is meant to consider 
how those decisions will be made. Let me be clear here, we need not 
consider today the relative merits or risks of any current or future 
military operation. Such policy discussions are important. But this 
hearing will consider, as a first principle, the constitutional 
framework by which all major war powers decisions must ultimately be 
made if we are to respect the Constitution and maintain our unity of 
purpose in our ongoing response to terrorism.
    I would ask our witnesses, therefore, to focus their attention on 
two overarching questions as we proceed with this discussion. First, I 
would ask our witnesses to reflect on the requirements of the standing 
Congressional use-of-force authorization for the events of September 
11, and when, within the limits of the Constitution and the War Powers 
Resolution, new authorizations or consultations would be required as we 
expand our military operations. Second, I would also ask the witnesses 
here to consider how Congress and the Administration might implement a 
system of more meaningful consultations as we move forward in what 
could become a long and complicated conflict waged on a variety of 
fronts in a number of countries.
    The War Powers Resolution has been set in motion in our present 
response to terrorism, and Congress has taken an important step to 
reassert its constitutional responsibility in this area. Now Congress 
and the President have a chance to balance the power to wage war in the 
way that the War Powers Resolution dictates, and in the way that the 
framers of the Constitution intended. Such cooperation preserves our 
constitutional structure. It also increases the moral authority of the 
United States to act forcefully. Given the unprecedented nature of the 
threat confronting us, a powerful and constitutionally unified response 
remains essential. I look forward to the guidance that our witnesses 
today will give us.

    Chairman Feingold. I certainly would look forward to a 
statement by a member of the other party, when they come for 
introductory remarks at the appropriate time.
    But at this point I would simply place in the record, 
without objection, Senator Thurmond's statement that he wanted 
included in the record.
    Senator Thurmond also requested that an article be inserted 
in the record by John Yoo, one of our witnesses, from the 
Harvard Journal of Law and Public Policy. Without objection.
    [The information referred to is being retained in Committee 
files:]
    Chairman Feingold. And I would ask, without objection, for 
written testimony of the ACLU to be submitted into the record 
at this time.
    [The prepared statement of the ACLU follows:]

     Statement of The American Civil Liberties Union, Submitted by 
        Timothy H. Edgar, Legislative Counsel, Washington, D.C.

    Mr. Chairman, Senator Thurmond and members of the Subcommittee:
    We commend you for holding this important oversight hearing on 
applying the War Powers Act to the ``war on terrorism.'' The War Powers 
Act provides the framework to ensure that future decisions about 
whether to use military force will made not by the President acting 
alone, but by the President acting with the consent of Congress, as the 
framers of the Constitution intended. The American Civil Liberties 
Union is a non-profit, non-partisan organization with almost 300,000 
members, dedicating to preserving our civil liberties and our 
constitutional freedoms even in times of crisis.
    The ACLU has been steadfast in its insistence that any decision to 
use military force must, under our Constitution, receive Congressional 
approval either through a declaration of war or a joint resolution 
pursuant to the War Powers Act. These principles apply with equal force 
to the current ``war on terrorism.'' The ACLU does not, as a matter of 
longstanding policy, support or oppose any particular decision to use 
military force, but does insist that such important decisions involving 
the lives of American troops require not only consultation with 
Congress, but approval from the people's elected representatives.

      Congress Must Continue to Insist on Its Constitutional Role

    We strongly, urge members of this subcommittee to safeguard 
Congress's constitutional role by insisting on respect for the limits 
of Pub. L. No. 107-40, a joint resolution adopted on September 14, 
2001. This measure approves the use of military force in response to 
terrorist attacks against the World Trade Center and the Pentagon. We 
think it is important for Congress to be clear about what the 
resolution does and does not do.
    By its express terms, the joint resolution authorizes the President 
to use 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. . . .'' During the past few months, United 
States military forces in Afghanistan, acting with other nations and 
pursuant to the joint resolution, have destroyed or captured fighters 
for Al Qaeda, the organization the President has determined were 
responsible for the attacks of September 11, and toppled the Taliban; 
the regime which harbored them.
    However, President Bush has also announced, during his State of the 
Union address, that ``[w]hile the most visible military action is in 
Afghanistan, America is acting elsewhere.'' The President announced 
that military initiatives against terrorism were being undertaken in 
the Philippines, Bosnia, and off the coast of Africa. The President 
also issued a warning to the governments of Iran, Iraq and North Korea, 
whom he termed an ``axis of evil,'' hinting at possible military action 
if those governments do not discontinue their efforts to acquire 
weapons of mass destruction.
    On November 13, 2001, President Bush issued a ``Military Order'' 
authorizing indefinite detention, and possible trial by military 
tribunal of non-citizens ``in the war on terrorism,'' citing the 
authority of the joint resolution. He did so despite the fact that such 
military tribunals were last used at a time of declared war. The joint 
resolution did not declare war, nor had the Congress even hinted it 
intended to authorize military trials by adopting the resolution.
    Congress should set the Administration straight about the limits of 
the joint resolution. The joint resolution is not a declaration of war, 
nor is it a carte blanche to use military force without further 
Congressional authorization whenever the President invokes the ``war on 
terrorism.''
   The Authorization of Force Resolution is Not a Declaration of War
    Under the Constitution, only Congress can declare the existence of 
a ``state of war,'' a decision with important consequences for. civil 
liberties. In this. instance, Congress has chosen not to declare war 
but has acted instead under the War Powers Act. Congress is permitted 
to authorize ``limited hostilities,'' rather than declare a general 
war. Talbot v. Seeman, 5 U.S. 1, 28 (1801). When Congress does so, as 
it did on September 14, the, President is not given all of the 
authority to wage war that the Constitution permits; instead, he is 
limited to the authority Congress has given him by statute. As Justice 
Chase explained:

          If a general war is declared, its extent and operation are 
        only restricted and regulated by the jus belli, forming a part 
        of the law of nations; but if a partial war is waged, its 
        extent and operation depend on our municipal [domestic] laws.

    Bas v. Tingy, 4 U.S. 37, 43 (1800). In Little v. Barreme, 6 U.S. 
170 (1804), the Supreme Court struck down, during a ``limited war,'' a 
President proclamation allowing the seizure of French vessels sailing 
``from or to'' France, reasoning that Congress had only authorized by 
statute the seizure of vessels ``to'' France. Id. at 177.
    For this reason, among others, we do not believe that the joint 
resolution gives the President the authority to use military tribunals 
to infinitely detain terrorism suspects, try ``enemy belligerents'' for 
``law of war'' violations,\1\ to suspend other important constitutional 
rights. The joint resolution nowhere mentions the creation of military 
tribunals or other suspensions of civil and constitutional rights, nor 
does the debate on the joint resolution indicate that such tribunals 
were intended or even contemplated by those who voted in its favor.
---------------------------------------------------------------------------
    \1\ In Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court 
permitted a military commission to be used, during a time of declared 
war, against ``unlawful belligerents'' who are ``acting under the 
direction of the armed forces of the enemy.'' Id. at 37. This 
authority, the Supreme Court held, gave military commissions the 
sanction of Congress, but that sanction lasted only ``from [war's] 
declaration until peace is declared.'' In re Yamashita, 327 U.S. 1, 11-
12 (1946).
---------------------------------------------------------------------------
    The Authorization of Force Resolution Contains Important Limits
    While the resolution of September 14 does not declare war, it does 
authorize the use of military force. Still, even in this area it cannot 
and should not be construed by either the President or Congress as a 
carte blanche. Rather, Congress must continue to play an important role 
in the national debate as the size and scope of any possible military 
engagement evolves over time. The resolution does not authorize 
military force against targets which were not involved in the attacks 
on September 11, or for objectives other than preventing acts of 
terrorism. The use of military force in such instances would--and 
should--require additional congressional authorization, and should be 
considered on their own merits.
    The War Powers Act was adopted in 1973, only 9 years after the 1964 
Gulf of Tonkin resolution had authorized the President to ``take all 
necessary measures to repel any armed attack against the forces of the 
United, States and to prevent further aggression'' in Southeast Asia. 
Pub. L. No. 88-408. Having seen Presidents Johnson and Nixon rely on 
this vague language as a basis for escalating the Vietnam conflict 
without any further legislative action, Congress passed the War Powers 
Act as one means of reasserting its vital constitutional role in the 
decision to commit American forces to battle.
    As you know, the War Powers Act contains three basic requirements. 
First, it requires regular consultation with Congress whenever military 
action is contemplated: 50. U.S.C. Sec. 1542. Second, the Aarequires 
the President to file a report within 48 hours of when armed forces are 
introduced ``into hostilities or into situations where imminent 
involvement in hostilities is clearly indicated by the circumstance.'' 
50 U.S.C. Sec. 1543(1). The report must outline, among other things, 
``the estimated scope and duration of the hostilities or involvement,'' 
50 U.S.C. Sec. 1544(a).
    Finally, the Act requires Congress to give its consent, either 
through a declaration of war or ``specific statutory authorization,'' 
such as a joint resolution that references the Act. If Congress does 
not consent within 60 days of the time the report is, or should have 
been filed, the President must withdraw American forces within 30 days. 
50 U.S.C Sec. 1544(b). The joint resolution adopted by Congress 
expressly states that it is intended to constitute the ``specific 
statutory authorization'' required by the War Powers Act. The 
resolution also states that it is not intended to supercede any 
requirement of the War Powers Act.
    The War Powers Act gives Congress the means to assert its proper 
constitutional role with respect to any use of American military force 
abroad to combat terrorism in the weeks, months, perhaps years ahead. 
Such use of military force will require difficult and profound moral 
and foreign policy choices on which the public may well disagree. 
Through the joint resolution, Congress authorized an initial military 
response against the perpetrators and those who harbored them. It did 
not, and under the Constitution it could not, cede its war powers to 
the President.

                               Conclusion

    Consistent with the constitutional design of the framers and the 
language of the War Powers Act, we urge Congress to insist that any 
Presidential decision to expand the scope or duration of military 
involvement into a ``wider war'' involving other nations comply with 
the strictures of the War Powers Act, including the requirements of 
consultation, reporting and consent within 60 days of the initiation of 
hostilities or the deployment of troops where hostilities are likely.
    We welcome your continued oversight of the war on terrorism, and we 
pledge to work with you to ensure against erosion of the War Powers Act 
and the Constitution's checks and balances. In this time of continued 
danger from terrorism, the country will be faced with a series of 
critical decisions regarding the scope and duration of our military 
commitment. Under both the Constitution and the War Powers Act, those 
decisions must be made with the concurrence of the people's 
representatives and not by the President acting alone.

    Chairman Feingold. As I said, we have an outstanding panel 
of witnesses here today, so let me make these introductions 
brief to give us more time to discuss the important questions 
before us.
    Let us start with John Yoo. John Yoo is a Deputy Assistant 
Attorney General in the Office of Legal Counsel of the United 
States Department of Justice. He is on leave from a position as 
professor of law at the University of California at Berkeley, 
having joined the faculty there in 1993. He has clerked for 
Justice Clarence Thomas of the U.S. Supreme Court and also 
served for a time as general counsel of the Senate Judiciary 
Committee.
    Mr. Yoo has written extensively on war powers issues.
    And before you begin, I want to thank you personally and 
thank the Department of Justice for allowing you to appear 
today as a part of this distinguished panel.
    And you may proceed.

 STATEMENT OF JOHN C. YOO, DEPUTY ASSISTANT ATTORNEY GENERAL, 
     OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Mr. Yoo. Thank you, Mr. Chairman. And I want to, on behalf 
of the department, thank you for having these hearings, or, 
given the stellar quality of the witnesses, you might call it a 
faculty meeting. And I will keep referring to you as ``Mr. 
Chairman,'' although my inclination is to call you ``Dean 
Feingold'' for the rest of the afternoon.
    Chairman Feingold. Great.
    [Laughter.]
    Mr. Yoo. It is my honor and pleasure to come before you 
today to testify on the War Powers Resolution of 1973 and the 
question of presidential war powers under the Constitution. As 
a former general counsel of the Judiciary Committee, I have 
long held a deep and abiding respect for this committee and its 
members. And I look forward to another chance to exchange ideas 
with members of the committee today on this most important 
matter.
    As you know, the Office of Legal Counsel in which I serve 
helps the Attorney General fulfill his role as legal adviser to 
the President, particularly in areas of constitutional law and 
presidential power.
    As this committee is aware, legal scholars have long 
debated the constitutional allocation of war powers between the 
President and the Congress and the effect of the War Powers 
Resolution on that allocation.
    This administration follows the course of administrations 
before us, both Democratic and Republican, in the view that the 
President's power to engage U.S. armed forces in military 
hostilities is not limited by the War Powers Resolution. The 
sources of presidential power can be found in the Constitution 
itself. And I shall discuss both the War Powers Resolution and 
the Constitution in today's hearing.
    In doing so, I will explain in particular how the 
President's conduct of the war against terrorism is authorized 
under the Constitution and consistent with the War Powers 
Resolution.
    First, the War Powers Resolution of 1973. Section 2 of that 
resolution recognizes that the President may ``introduce United 
States armed forces into hostilities'' pursuant to, one, a 
declaration of war; two, specific statutory authorization or, 
three, ``a national emergency created by attack upon the United 
States, its territories or possessions, or its armed forces.''
    Section 2 of that resolution, therefore, recognizes the 
President's power in the current circumstances. The President's 
decision to use armed forces to combat terrorism and respond to 
the attacks of September 11th followed in two of the 
resolution's enumerated provisions for using military force.
    First, the United States was viciously attacked on 
September 11th by members of an international network of 
terrorists. That attack unequivocally placed the United States 
in a state of armed conflict justifying a military response, as 
recognized by Congress, while NATO and the United Nations 
recognized United States exercise of its right to self-defense.
    In response to the September 11th attack, the President 
immediately issued Proclamation 7463, declaring the existence 
of a state of national emergency. Thus the conditions 
recognized by Section 2 of the resolution as justifying the use 
of force without any further action whatsoever from Congress, 
an attack on the United States and a resulting national 
emergency, have each been satisfied.
    In addition, the President has specific statutory 
authorization in the form of Senate Joint Resolution 23. That 
resolution, which this body approved unanimously last 
September, states that the President may 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.
    The resolution thus recognizes that the President 
determines what military actions are necessary to combat those 
who are associated with the organizations and individuals 
responsible for September 11th. Thus the President's authority 
to conduct the war against terrorism is recognized by Section 2 
of the War Powers Resolution; Congress has specifically 
expressed a support for the use of the armed forces; and the 
United States has suffered an attack.
    Moreover, the War Powers Resolution specifically provides, 
as it must, that ``nothing in this joint resolution is intended 
to alter the constitutional authority of the Congress or of the 
President.'' This important language recognizes the President's 
constitutional authority separate and apart from the War Powers 
Resolution to engage U.S. armed forces in hostilities.
    That brings us to the question: What is the scope of the 
President's constitutional power expressly recognized by the 
resolution? Congress provided an answer when it overwhelmingly 
approved S.J. Res. 23. That resolution expressly states that 
``the President has authority under the Constitution to take 
action to deter and prevent acts of international terrorism 
against the United States.''
    As you accurately explained on the Senate floor, this 
language plainly recognizes ``that the President has existing 
constitutional powers.'' This is quite plainly a correct 
interpretation of the President's war power under the 
Constitution.
    As I explained in greater detail in my written testimony, 
that I have submitted for the record, under Article 2, Section 
1 of the Constitution, the President is a locus of the entire 
executive power of the United States and thus, in the Supreme 
Court's words, is the sole organ of the Federal Government in 
the field of international relations. Under Article 2, Section 
2, he is the Commander in Chief of the armed forces.
    These two provisions give the President the constitutional 
authority to introduce U.S. armed forces into hostilities when 
appropriate, with or without specific congressional 
authorization.
    Notably, nothing in the text of the Constitution requires 
the advice and consent of the Senate or the authorization of 
Congress before the President may exercise the executive power 
and his authority as Commander in Chief.
    Thus in 1999 the Clinton administration relied on the 
President's constitutional authority to use force in Kosovo. 
Assistant Secretary of State Barbara Larkin testified before 
Congress that April that, ``There is no need for a declaration 
of war. Every use of U.S. armed forces since World War II has 
been undertaken pursuant to the President's constitutional 
authority. This administration, like previous administrations, 
takes a view that the President has broad authority as 
Commander in Chief and, under his authority to conduct foreign 
relations, to authorize the use of force in the national 
interest.''
    That said, although the last administration, like its 
predecessors, questioned the wisdom and the constitutionality 
of the War Powers Resolution, it is this administration's 
belief that government works best when the two branches 
cooperate in matters concerning the use of U.S. armed forces. 
Accordingly, we are committed to close consultation with 
Congress whenever possible regarding the need to use force to 
combat terrorism and to protect our national interests whenever 
possible.
    We value the views of Congress regarding the appropriate 
use of military force, as evidenced by our close and meaningful 
consultations with Congress after the attacks of September 11th 
and before the introduction of U.S. armed forces into 
Afghanistan on October 7th, 2001.
    In addition to the President himself addressing a joint 
session of Congress on September 20th, senior members of the 
administration briefed Members of Congress and their staffs on 
over 10 occasions in that short time period. One result of 
these consultations was the enactment of S.J. Res. 23, which 
the President welcomed.
    At the same time, however, we must recognize that we are in 
a war against--again to use your words--``a loose network of 
terrorists,'' and not ``a state with clearly defined borders.'' 
When fighting--again to use your words--``a highly mobile, 
diffuse enemy that operates largely beyond the reach of our 
conventional war-fighting techniques,'' extensive congressional 
discussion will often be a luxury we cannot afford. Our enemy 
hides in the civilian populations of the nations of the world.
    As you pointed out, ``There can be no peace treaty with 
such an enemy.'' Likewise, sometimes there can be no formal 
public declaration of war against such an enemy.
    The attacks of September 11th introduced the United States 
into an unprecedented military situation. This administration 
is confident that the allocation of war powers contemplated by 
the founders of our Constitution is fully adequate to address 
the dangers of the 21 century and that armed with the war 
powers conferred upon him by the Constitution and recognized by 
the resolution, the President will be able to work effectively 
with this committee and with Congress to assure the protection 
of the United States from an additional terrorist attack.
    Thank you, Mr. Chairman, for this opportunity to discuss 
these important issues with the committee. And I am happy to 
respond to any questions that you may have.
    [The prepared statement of Mr. Yoo follows:]

Statement of John C. Yoo, Deputy Assistant Attorney General, Office of 
               Legal Counsel, U.S. Department of Justice

    Mr. Chairman and Members of this Subcommittee:
    It is my honor and pleasure to come before you today, to testify on 
the war powers resolution of 1973 and presidential war powers under the 
constitution. As a former general counsel of the Senate Judiciary 
Committee, I have long held a deep and abiding respect for this 
Committee and all of its Members. I look forward to another thoughtful 
exchange of ideas with the Members of the Committee today on this most 
important matter.
    I currently serve as Deputy Assistant Attorney General in the 
Office of Legal Counsel at the Department of Justice. As you know, that 
office helps the Attorney General fulfill his role as legal advisor to 
the President, particularly in areas of constitutional law and 
presidential power.
    As this Committee is aware, legal scholars have long debated the 
constitutional allocation of war powers between the President and the 
Congress, and the effect of the war powers resolution on that 
allocation. This administration follows the course of administrations 
before us, both Democratic and Republican, in the view that the 
President's power to engage U.S. Armed Forces in military hostilities 
is not limited by the War Powers Resolution. The sources of 
presidential power can be found in the Constitution itself. I shall 
discuss both the war Powers Resolution and the Constitution today. In 
doing so, I will explain in particular how the President's conduct of 
the war against terrorism is authorized under the Constitution and 
consistent with the War Powers Resolution.
    First, the War Powers Resolution of 1973. Section 2 of that 
resolution recognizes that the President may ``introduce United States 
Armed Forces into hostilities'' 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.''
    Section 2 of the resolution recognizes the president's broad power 
in the current circumstances. The president's decision to use armed 
forces to combat terrorism and respond to the attacks of September 11 
fall within two of the resolution's enumerated provisions for using 
military force. First, the United States was attacked on September 11 
by members of an international network of terrorists. That attack 
unequivocally placed the United states in a state of armed conflict, 
justifying a military response, as recognized by Congress, while NATO 
and the United Nations recognized the U.S.' exercise of its right to 
self defense. in response to the September 11 attack, the President 
immediately issued proclamation 7463, declaring the existence of a 
state of national emergency. thus, the conditions recognized by section 
2 of the resolution as justifying the use of force without any action 
whatsoever from Congress--an attack on the United States, and a 
resulting national emergency--have each been satisfied.
    In addition, the President has specific statutory authorization, in 
the form of S.J. Res. 23 (Pub. L. 107-40). That resolution, which this 
body approved unanimously last September, states that the President may 
``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.'' The resolution thus recognizes 
that the President determines what military actions are necessary to 
combat those who are associated with the organizations and individuals 
responsible for September 11.
    Thus, the President's authority to conduct the war against 
terorrism is recognized by section 2 of the War Powers Resolution. 
Congress has specifically expressed its support for the use of the 
armed forces, and the United States has suffered an attack.
    Moreover, the War Powers Resolution specifically provides, as it 
must, that ``nothing in this joint resolution is intended to alter the 
constitutional authority of the Congress or of the President.'' This 
important language recognizes the President's constitutional authority, 
separate and apart from the War Powers Resolution, to engage U.S. Armed 
Forces in hostilities. That brings us to the question: what is the 
scope of the President's constitutional power, expressly recognized by 
the resolution?
    Congress provided an answer when it overwhelmingly approved S.J. 
Res. 23. that resolution expressly states ``that the President has 
authority under the Constitution to take action to deter and prevent 
acts of international terrorism against the United States.'' As 
Chairman Feingold accurately explained on the Senate floor, this 
language plainly recognizes ``that the President has existing 
constitutional powers.''
    This is quite plainly a correct interpretation of the President's 
war power under the Constitution. The relevant scholarly works could 
fill this entire room, but i will try to summarize the argument briefly 
here. Under Article II, Section 1 of the Constitution, the President is 
the locus of the entire ``executive power'' of the United States and, 
thus, in the Supreme Court's words, ``the sole organ of the Federal 
Government in the field of international relations.'' under Article II, 
Section 2, he is the ``commander in chief'' of the armed forces of the 
United States. These two provisions make clear that the President has 
the constitutional authority to introduce U.S. Armed Forces into 
hostilities when appropriate, with or without specific congressional 
authorization.
    Notably, nothing in the text of the Constitution requires the 
advice and consent of the Senate, or the authorization of Congress, 
before the President may exercise the executive power and his authority 
as commander in chief. By contrast, Article II requires the President 
to seek the advice and consent of Senate before entering into treaties 
or appointing ambassadors. Article I, Section 10 denies states the 
power to ``engage'' in war, except with congressional authorization or 
in case of actual invasion or imminent danger. Article III describes 
the offense of treason as the act of levying war against the United 
States. Moreover, founding documents prior to the U.S. Constitution, 
such as the South Carolina Constitution of 1778, expressly prohibited 
the executive from commencing war or concluding peace without 
legislative approval. The founders of the Constitution thus knew how to 
constrain the President's power to exercise his authority as commander 
in chief to engage U.S. Armed Forces in hostilities, and decided not to 
do so.
    Of course, as the President has the constitutional authority to 
engage U.S. Armed Forces in hostilities, Congress has a broad range of 
war powers as well. Congress has the power to tax and to spend. 
Congress has the power to raise and support armies and to provide and 
maintain a navy. And Congress has the power to call forth the militia, 
and to make rules for the Government and regulation of the armed 
forces. In other words, although the President has the power of the 
sword, Congress has the power of the purse. As James Madison explained 
during the critical constitutional ratifying convention of Virginia, 
``the sword is in the hands of the British King; the purse in the hands 
of the Parliament. It is so in America, as far as any analogy can 
exist.'' The President is commander in chief, but he commands only 
those military forces which Congress has provided.
    Congress also has the power to declare war. This power to declare a 
legal state of war and to notify other nations of that status once had 
an important effect under the law of nations, and continues to trigger 
significant domestic statutory powers as well, such as under the Alien 
Enemy Act of 1798 (50 U.S.C. Sec. 21) and Federal surveillance laws (50 
U.S.C. Sec. Sec. 1811, 1829, 1844). But this power has seldom been 
used. Although U.S. Armed Forces have, by conservative estimates, been 
deployed well over a hundred times in our Nation's history, Congress 
has declared war just five times. This long practice of U.S. engagement 
in military hostilities without a declaration of war demonstrates that 
previous Presidents and Congresses have interpreted the Constitution as 
we do today.
    As the United States rose to global prominence in the post-World 
War II era, Congress has provided the President with a large and 
powerful peacetime military force. Presidents of both parties have long 
used that military force to protect the national interest, even though 
Congress has not declared war since World War II. President Truman 
introduced U.S. Armed Forces into Korea in 1950 without prior 
congressional approval. President Kennedy claimed constitutional 
authority to act alone in response to the Cuban missile crisis by 
deploying a naval quarantine around Cuba. Presidents Kennedy and 
Johnson dramatically expanded the U.S. military commitment in vietnam 
absent a declaration of war.
    In response to President Nixon's expansion of the Vietnam War into 
Laos and Cambodia, Congress approved the War Powers Resolution, but 
that resolution expressly disclaimed any intrusion into the President's 
constitutional war power. Accordingly, Presidents Ford, Carter, Reagan, 
and the first President Bush have committed U.S. Armed Forces on a 
number of occasions. In these cases, the administration has generally 
consulted with, notified, and reported to Congress, consistent with the 
War Powers Resolution.
    President Clinton deployed U.S. Armed forces in Somalia, Haiti, and 
Bosnia--all without prior congressional authorization. In 1999, the 
Clinton administration relied on the President's constitutional 
authority to use force in Kosovo. Assistant Secretary of State Barbara 
Larkin testified before Congress that April that ``there is no need for 
a declaration of war. Every use of U.S. Armed Forces, since World War 
II, has been undertaken pursuant to the President's constitutional 
authority. . . . This administration, like previous administrations, 
takes the view that the President has broad authority as commander in 
chief and under his authority to conduct foreign relations, to 
authorize the use of force in the national interest.''
    In short, Presidents throughout U.S. history have exercised broad 
unilateral power to engage U.S. Armed Forces in hostilities. Congress 
has repeatedly recognized the existence of presidential constitutional 
war power, in the War Powers Resolution of 1973, and more recently in 
S.J. Res. 23. and the courts have supported this view as well. as the 
Supreme Court noted in Hamilton v. Dillin (1874), it is ``the President 
alone, who is constitutionally invested with the entire charge of 
hostile operations.'' significantly, the Courts have never stopped the 
President from deploying U.S. Armed Forces or engaging them in 
hostilities--most recently, in the case of Campbell v. Clinton.
    That said, although the last administration, like its predecessors, 
questioned the wisdom and the constitutionality of the War Powers 
Resolution, it is our belief that Government works best when the two 
branches cooperate in matters concerning the use of U.S. Armed Forces. 
Accordingly, We are committed to close consultations with Congress 
whenever possible regarding the need to use force to combat terrorism 
and to protect our national interest, whenever possible. We value the 
views of Congress regarding the appropriate use of military force, as 
evidenced by our close and meaningful consultations with Congress after 
the attacks of September 11, and before the introduction of U.S. Armed 
Forces into combat action in Afghanistan on October 7, 2001. in 
addition to The President himself addressing a joint session of 
Congress on September 20, senior members of the Administration briefed 
Members of Congress and their staffs on over 10 occasions in that short 
time period. One result of these consultations was the enactment of 
S.J. Res 23, which the President welcomed.
    At the same time, however, we must recognize that we are in a war 
against, to use Chairman Feingold's words again, ``a loose network of 
terrorists,'' and not ``a state with clearly defined borders.'' when 
fighting ``a highly mobile, diffuse enemy that operates largely beyond 
the reach of our conventional war-fighting techniques,'' extensive 
congressional discussion will often be a luxury we cannot afford. Our 
enemy hides in The civilian populations of the nations of the world. as 
Chairman Feingold pointed out, ``there can be no peace treaty with such 
an enemy.'' Likewise, there can be no formal, public declaration of war 
against such an enemy.
    The attacks of September 11 introduced the United States into an 
unprecedented military situation. This administration is confident that 
the allocation of war powers contemplated by the founders of our 
Constitution is fully adequate to address the dangers of the twenty-
first century, and that, armed with the war powers conferred upon him 
by the Constitution and recognized by the War Powers Resolution, the 
President will be able to work effectively with this Committee and with 
Congress to ensure the protection of the United States from additional 
terrorist attack.
    Thank you, Mr. Chairman and Members, for this opportunity to 
discuss these important issues with the Committee. I am happy to 
respond to any questions which you may have.

    Chairman Feingold. Thank you again, Mr. Yoo, very much for 
appearing before us. And we will have the opportunity to raise 
some questions with you.
    But now we will go to our second witness, Louis Fisher, who 
is a senior specialist in separation of powers with the 
Congressional Research Service of the Library of Congress. He 
began his work with CRS in 1970, and he served as research 
director of the House Iran-Contra committee in 1987.
    He has also written extensively on the topic of war powers 
and has co-edited a four-volume encyclopedia of the American 
presidency.
    He received his doctorate in political science from the New 
School for Social Research and has taught at a number of 
colleges and universities.
    And it is a pleasure to welcome you here. I have quoted you 
frequently. It is good to see you. You may proceed.

 STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF 
 POWERS, CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, 
                        WASHINGTON, D.C.

    Mr. Fisher. Thank you very much.
    And thank you for holding a hearing with the big question 
of how a democracy goes to war. Is that done unilaterally by 
the President, or is it done in concert with the elected 
representatives? And on the second question you raised, about 
consultation devices that might be used to improve 
relationships between the two branches.
    It is my own view that the Constitution contemplates that, 
in initiating war against another country, the two branches 
shall not just consult but that the President shall obtain in 
advance authority from Congress, as was done regularly from 
1789 to 1950. Of course, President Truman's action in Korea 
changed that fundamentally. And I will talk about that.
    But even since that time, there have been a number of 
occasions, Iraq in January 1991 and last year, where 
authorization was obtained in advance.
    On consultation, that has been debated at least for three 
decades to my knowledge with different techniques. And whatever 
is done through consultation does not, for me, become a 
substitute for authorization. That is, if the President met 
with Members of Congress every week and shared every piece of 
confidential, classified information, it is not a substitute 
for what the Constitution requires.
    ``Collective judgment'' are the words in the War Powers 
Resolution. And by putting those two words in, in 1973, Members 
of the Congress reflected the Framers' decision to break with 
the model of the 1780s that put all of foreign affairs, all of 
war powers, all of external affairs in the executive. And that 
was the model developed by John Locke, the model developed by 
William Blackstone.
    And I do not think there could be a clearer repudiation of 
it than just to read the Constitution and see that those 
prerogatives in foreign affairs that had been placed in the 
executive are either placed in Article 1 under Congress or they 
are placed jointly with the Senate and the President on 
treaties and appointing ambassadors.
    For over 160 years, Members of Congress, people in the 
executive branch and the federal courts all recognized 
consistently that when the country goes from the state of peace 
to a state of war, the President comes to Congress for 
authority in advance. There are certain defensive actions that 
a President may take.
    And you and I are both familiar, over those years, 160 
years, there were examples where Presidents used military force 
without authority from Congress. But those are fairly small-
scale actions, chasing bandits over the borders and doing 
various things, certainly not major military actions.
    All the military major actions were done either by 
declaration of war or by an authorization. There is confusion 
at times. Even the Barbary pirates people think that Jefferson 
and Madison acted unilaterally. Of course, they did not. They 
came to Congress. And there were 10 statutes authorizing even 
those actions.
    There is power of the purse, of course, but I do not think 
that is the check that Congress wants to rely on. Otherwise, it 
would mean that a President could initiate war and continue 
war, and the burden would be on you to pass in an 
appropriations bill restrictive language. Of course, that most 
likely would be vetoed. And now you need two-thirds in each 
house.
    That means the President could start a war and continue 
with it so long as he had one-third plus one in one house. And 
that is exactly, as you remember, what the Congress ran into in 
1973 when it tried to cut off funds. President Nixon vetoed it.
    And there is an interesting case in New York that I talk 
about in my statement where the judge said it cannot be the 
meaning that a President can start a war and continue it so 
long as he has one-third plus one in one chamber.
    What led to the War Powers Resolution? Why do we have this 
thrust of power to the President? I talk in my statement about 
two enormous contributions to that, the UN Charter and mutual 
security pacts, particularly NATO, where we are now in the 
pattern of Presidents not coming to Congress for authority but 
going to the Security Council for ``authority'' or going to 
NATO members for ``authority.''
    The record is quite dramatic that in the Senate, adopting 
the UN Charter and adopting those mutual security pacts never 
intended the President to act unilaterally. In fact, Truman 
from Potsdam cabled the Senate and said that: Any time that I 
enter into a special agreement with the Security Council, I 
will come to Congress first and get approval, get authority. 
And the U.N. Participation Act also provides expressly for 
authority.
    Nevertheless, Presidents have been doing this, and Congress 
has not provided a check or confrontation on this.
    But those are two large reasons why power has gravitated to 
the President.
    I talk about Eisenhower's model. Eisenhower thought that 
President Truman made a mistake going into Korea unilaterally, 
a political mistake, a constitutional mistake. And it was 
Eisenhower's practice to work jointly, not just through 
consultation but by getting authority from Congress for area 
resolutions.
    And when it was suggested that he go into Indochina, he 
said he would never do that unless he has the authority of 
Congress first. So that was the model, I think a good sound 
model, reflecting constitutional values.
    I speak about other developments of the War Powers 
Resolution. The War Powers Resolution tried to marry what came 
out of the House, a very liberal grant of power, and what came 
out of the Senate, very restrictive. And of course what came 
out in conference is a compromise between the two. That should 
be no problem in most cases. This time I think it compromised 
the Constitution by recognizing that Presidents can go to war 
for 60 to 90 days on their own judgment without any involvement 
of Congress.
    The Use of Force Act of last year can be read. It is a very 
short act. You can look at different words in there, that it 
talks about not nation, but plural ``nations.'' It talks about 
``he determines.'' But I think in interpreting that act, the 
guidance has to be the Constitution, not trying to parse a 
statute that was passed in a very short amount of time, trying 
to give adequate authority to the President.
    My own judgment is that any future action militarily 
against another country, a second or third country, requires 
congressional authority and cannot be done under what Congress 
passed last year.
    Thank you very much.
    [The prepared statement of Mr. Fisher follows:]
 Statement of Louis Fisher, Senior Specialist in Separation of Power, 
 Congressional Research Service, Library of Congress, Washington, D.C.
    Mr. Chairman, thank you for inviting me to testify on a most 
important issue: how Congress and the President commit the Nation to 
war. Events of September 11 and the war against terrorism have brought 
this issue again into sharp focus. The Use of Force Act of September 
18, 2001, authorized military action against the terrorist network 
involved in the terrorist attacks of September 11. In my judgment, 
however, military operations against countries other than Afghanistan 
can be appropriately initiated only with additional authorization from 
Congress. Moreover, whatever mechanisms are devised to improve 
consultation between the two branches will not satisfy the 
constitutional need for congressional authorization. The reasons for 
these conclusions are set forth below.
    We debate the constitutionality of war power actions because of a 
rock-bottom belief held by the framers: It is possible to structure 
government in such a way to protect individual liberties and freedoms. 
We refer to this concept in different ways: separation of powers, 
checks and balances, pitting ambition against ambition. To the framers, 
it meant that the clash between institutions is the safest and best way 
of formulating national policy, whether domestic or foreign. The War 
Powers Resolution (WPR) relies on this same concept but uses different 
words: ``collective judgment.''

                          Collective Judgment

    Section 2(a) of the WPR states that it is ``the purpose of this 
joint resolution to fulfill the intent of the framers of the 
Constitution of the United States and insure that the collective 
judgment of both the Congress and the President will apply to the 
introduction of United States Armed Forces into hostilities, or into 
situations where imminent involvement in hostilities is clearly 
indicated by the circumstances, and to the continued use of such forces 
in hostilities or in such situations.'' 87 Stat. 555, Sec. 2(a) (1973).
    Why the emphasis on ``collective judgment''? Why not let the 
President initiate war without congressional authority? In 1787, the 
existing models of government throughout Europe, particularly in 
England, placed the war power and foreign affairs solely in the hands 
of the Executive. John Locke, in his Second Treatise on Civil 
Government (1690), placed the ``federative'' power (what we call 
foreign policy) with the Executive. Sir William Blackstone, in his 
Commentaries, defined the king's prerogative broadly to include the 
right to send and receive Ambassadors, to make war or peace, to make 
treaties, to issue letters of marque and reprisal (authorizing private 
citizens to undertake military actions), and to raise and regulate 
fleets and armies.
    The framers studied this monarchical model and repudiated it in its 
entirety. They placed Locke's federative powers and Blackstone's royal 
prerogatives either exclusively in Congress or as a shared power 
between the Senate and the President (appointing Ambassadors and making 
treaties). The rejection of the British model and monarchy could not 
have been more complete.
    While the ``original intent'' of many constitutional provisions is 
debatable, there is no doubt about the framers' determination to vest 
in Congress the sole authority to take the country from a State of 
peace to a State of war. From 1789 to 1950, lawmakers, the courts, and 
the executive branch understood that only Congress could initiate 
offensive actions against other nations.\1\ As I will explain later, 
matters changed fundamentally in 1950 when President Harry Truman took 
the country to war in Korea without seeking congressional authority.
---------------------------------------------------------------------------
    \1\ Louis Fisher, Presidential War Power (1995); John Hart Ely, War 
and Responsibility (1993); David Gray Adler, ``The Constitution and 
Presidential Warmaking: The Enduring Debate,'' 103 Pol. Sci. Q. 1 
(1998); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War 
(1986).
---------------------------------------------------------------------------
    Admittedly, some scholars--particularly John Yoo--argue that the 
framers designed a system to ``encourage Presidential initiative in 
war'' and that the Constitution's provisions ``did not break with the 
tradition of their English, state, and revolutionary predecessors, but 
instead followed in their footsteps.'' \2\ This is not the place to 
analyze Yoo's work in detail, for that has been done elsewhere.\3\ 
Suffice it to say that had the framers adopted the English model, they 
wouldn't have written Articles I and II the way they did. Here it is 
unnecessary to debate the framers' intent. It is enough to look at the 
plain text of the Constitution. If the framers had indeed adopted ``the 
traditional British approach to war powers,'' \4\ they would have 
written Article II to give the President the power to declare war, to 
issue letters of marque and reprisal, and to raise armies, along with 
other powers of external affairs that are reserved to Congress.
---------------------------------------------------------------------------
    \2\ John C. Yoo, ``The Continuation of Politics by Other Means: The 
Original Understanding of War Powers,'' 84 Cal. L. Rev. 167, 174, 197 
(1996).
    \3\ Louis Fisher, ``Unchecked Presidential Wars,'' 148 U. Pa. L. 
Rev. 1637, 1658-68 (2000).
    \4\ Yoo, ``The Continuation of Politics by Other Means,'' at 242.
---------------------------------------------------------------------------
    I won't repeat here the many statements of framers who believed 
that they had stripped the Executive of the power to take the country 
to war. At the Philadelphia convention, George Mason said he was ``agst 
giving the power of war to the Executive, because not (safely) to be 
trusted with it. . . . He was for clogging rather than facilitating 
war.'' 2 Farrand 318-19. At the Pennsylvania ratifying convention, 
James Wilson expressed the prevailing sentiment that the system of 
checks and balances ``will not hurry us into war; it is calculated to 
guard against it. It will not be in the power of a single man, or a 
single body of men, to involve us in such distress; for the important 
power of declaring war is vested in the legislature at large.'' 2 
Elliot 528. The power of initiating war was vested in Congress. To the 
President was left certain defensive powers ``to repel sudden 
attacks.'' 2 Farrand 318.
    The framers gave Congress the power to initiate war because they 
believed that Presidents, in their search for fame and personal glory, 
would have too great an appetite for war.\5\ John Jay, generally 
supportive of executive power, warned in Federalist No. 4 that 
``absolute monarchs will often make war when their nations are to get 
nothing by it, but for purposes and objects merely personal, such as a 
thirst for military glory, revenge for personal affronts, ambition, or 
private compacts to aggrandize or support their particular families or 
partisans. These and a variety of other motives, which affect only the 
mind of the sovereign, often lead him to engage in wars not sanctified 
by justice or the voice and interests of his people.''
---------------------------------------------------------------------------
    \5\ William Michael Treanor, ``Fame, The Founding, and the Power to 
Declare War,'' 82 Corn. L. Rev. 695 (1997).
---------------------------------------------------------------------------
    In studying history and politics, the framers came to fear the 
Executive's potential appetite for war. Has human nature changed in 
recent decades to permit us to trust independent Presidential decisions 
in war? The historical record tells us that what Jay said in 1788 
applies equally well to contemporary times.

                           Power of the Purse

    John Yoo recognizes that Congress has the constitutional power to 
check Presidential wars: It can withhold appropriations. Congress 
``could express its opposition to executive war decisions only by 
exercising its powers over funding and impeachment.'' \6\ The spending 
power, he writes, ``may be the only means for legislative control over 
war.'' \7\ Constitutionally, this kind of analysis puts Congress in the 
back seat. Yoo allows Presidents to initiate wars and continue them 
until Congress is able to cutoff funds. The advantage to the President 
is striking. Executive wars may persist so long as the President has 
one-third plus one in a single chamber to prevent Congress from 
overriding his veto of a funding-cutoff.
---------------------------------------------------------------------------
    \6\ Yoo, ``The Continuation of Politics by Other Means,'' at 174.
    \7\ Id. at 197, n.158 (emphasis in original).
---------------------------------------------------------------------------
    This general issue took real form in 1973 when Congress passed 
legislation to deny funds for the war in Southeast Asia. After 
President Nixon vetoed the bill, the House effort to override failed on 
a vote of 241 to 173, or 35 votes short of the necessary two-thirds 
majority. 119 Cong. Rec. 21778 (1973). A lawsuit filed by 
Representative Elizabeth Holtzman (D-N.Y.) asked the courts to 
determine that President Nixon could not engage in combat operations in 
Cambodia and elsewhere in Indochina in the absence of congressional 
authorization. District Judge Judd held that Congress had not 
authorized the bombing of Cambodia. Its inability to override the veto 
and the subsequent adoption of an August 15 deadline for the bombing 
could not be taken as an affirmative grant of legislative authority: 
``It cannot be the rule that the President needs a vote of only one-
third plus one of either House in order to conduct a war, but this 
would be the consequence of holding that Congress must override a 
Presidential veto in order to terminate hostilities which it has not 
authorized.'' \8\ Appellate courts mooted the case because the August 
15 compromise resolved the dispute between the two branches.\9\
---------------------------------------------------------------------------
    \8\ Holtzman v. Schlesinger, 361 F.Supp. 553, 565 (E.D. N.Y. 1973).
    \9\ Louis Fisher, Presidential Spending Power 118-19 (1975).
---------------------------------------------------------------------------
                 The Road to the War Powers Resolution

    How have Presidents acquired so much independent power to take the 
country to war, contrary to what the framers intended? It may be 
tempting to say that the reason lies in the worldwide responsibilities 
that moved to the United States in the twentieth century. Yet the two 
greatest conflagrations--World Wars I and II--were both declared by 
Congress pursuant to the Constitution. Other conflicts, including Iraq 
in 1991 and the war against terrorism in 2001, were authorized by 
Congress.
    In 1973, lawmakers decided that a statute was necessary to curb 
Presidential wars and protect legislative prerogatives. What created 
the impetus for the War Powers Resolution? At the top of the list I 
would put the U.N. Charter and several mutual security pacts, 
particularly NATO. Although it was not the intent at the time, both 
treaties have in practice led to unilateral executive wars. Presidents 
sought authority not from Congress but from international and regional 
bodies. I have covered this development elsewhere,\10\ but will 
identify the main points here.
---------------------------------------------------------------------------
    \10\ Louis Fisher, ``Sidestepping Congress: Presidents Acting Under 
the UN and NATO,'' 47 Case W. Res. L. Rev. 1237 (1997); Louis Fisher, 
``The Korean War On What Legal Basis Did Truman Act?,'' 89 Am. J. Int'l 
L. 21 (1995).
---------------------------------------------------------------------------
    Truman in Korea, Bush in Iraq, Clinton in Haiti, Bosnia, and 
Kosovo--in each instance a President acted independently of Congress by 
relying either on the U.N. or NATO. Nothing in the history of the U.N. 
or NATO implies that Congress gave the President unilateral power to 
wage war. The legislative histories of those treaties show no such 
intent.

                               UN Charter

    Those who drafted the U.N. Charter did so against the backdrop of 
the disaster of the Versailles Treaty and President Woodrow Wilson's 
determination to make international commitments without Congress. One 
of the ``reservations'' he objected to was by Senator Henry Cabot 
Lodge, who insisted on prohibiting the use of American troops by the 
League of Nations unless Congress, ``which, under the Constitution, has 
the sole power to declare war or authorize the employment of the 
military or naval forces of the United States, shall by act or joint 
resolution so provide.'' 58 Cong. Rec. 8777 (1919).
    Wilson opposed the Lodge reservations, claiming that they ``cut out 
the heart of the Covenant'' and represented ``nullification'' of the 
treaty.\11\ However, Wilson did not disagree with the substance of 
Lodge's language on the war power. In a letter to Senator Gilbert 
Monell Hitchcock on March 8, 1920, Wilson acknowledged the broad scope 
of congressional authority over the initiation of war: ``There can be 
no objection to explaining again what our constitutional method is and 
that our Congress alone can declare war or determine the causes or 
occasions for war, and that it alone can authorize the use of the armed 
forces of the United States on land or on the sea. But to make such a 
declaration would certainly be a work of supererogation.'' \12\ In 
other words, Wilson objected to Lodge's language not because of its 
content but because it was superfluous. Both branches understood that 
congressional authorization was needed.
---------------------------------------------------------------------------
    \11\ 63 The Papers of Woodrow Wilson 451 (Arthutr S. Link ed., 
1990); 64 id. 47, 51.
    \12\ 65 id. 68.
---------------------------------------------------------------------------
    The rejection of the Versailles Treaty and Wilson's battle with 
Lodge remained part of the collective memory. In the meetings that led 
to the United Nations, the predominant view was that any commitment of 
U.S. forces to a world body needed prior authorization by both Houses 
of Congress. That attitude is reflected in the debates over the U.N. 
Charter, the U.N. Participation Act of 1945, and the 1949 amendments to 
the UN Participation Act.
    During Senate debate on the U.N. Charter, President Truman sent a 
cable from Potsdam, stating that all agreements involving U.S. troop 
commitments to the U.N. would first have to be approved by both Houses 
of Congress. Without any equivocation he pledged: ``When any such 
agreement or agreements are negotiated it will be my purpose to ask the 
Congress for appropriate legislation to approve them.'' 91 Cong. Rec. 
8185 (1945). Backed by his reassurance, the Senate supported the U.N. 
Charter by a vote of 89 to 2. This understanding was later incorporated 
in the U.N. Participation Act of 1945. Without the slightest ambiguity, 
Section 6 states that the agreements ``shall be subject to the approval 
of the Congress by appropriate act or joint resolution.'' 59 Stat. 621, 
Sec. 6 (1945).
    How was it possible for Truman, 5 years later, to send U.S. troops 
to Korea without seeking or obtaining congressional authority? His 
Administration claimed to be acting pursuant to U.N. authority. On June 
29, 1950, Secretary of State Dean Acheson claimed that all U.S. actions 
taken in Korea ``have been under the aegis of the United Nations.'' 
\13\ At a news conference, Truman agreed with a reporter's description 
of the war in Korea as ``a police action under the United Nations.'' 
\14\ If this was a U.N. military action, how could Truman circumvent 
the clear language of the U.N. Participation Act? The answer: The 
Administration chose not to enter into a ``special agreement.'' In 
fact, there has never been a special agreement. The very procedure 
enacted to protect legislative prerogatives became a nullity.
---------------------------------------------------------------------------
    \13\ 23 Dep't State Bull. 43 (1950).
    \14\ Public Papers of the Presidents, 1950, at 504.
---------------------------------------------------------------------------

                         Mutual Security Pacts

    In addition to citing the U.N. Charter and Security Council 
resolutions as grounds for using American troops in military 
operations, Presidents regard mutual security treaties as another 
source of authority. Treaties such as NATO and SEATO stipulate that 
provisions shall be ``carried out by the Parties in accordance with 
their respective constitutional processes.'' Nothing in the legislative 
histories of these treaties suggests that the President has unilateral 
authority to act in the event of an attack. Military action by the 
United States would have to be consistent with ``constitutional 
processes.''
    To argue that NATO and other mutual security treaties confer upon 
the President the authority to use military force without congressional 
approval would allow the President and the Senate, through the treaty 
process, to amend the Constitution by stripping the House of 
Representatives of its prerogatives over the use of military force. 
Scholars who examined NATO after its adoption concluded that the 
language about constitutional processes was ``intended to ensure that 
the executive branch of the Government should come back to the Congress 
when decisions were required in which the Congress has a constitutional 
responsibility.'' The NATO treaty ``does not transfer to the President 
the Congressional power to make war.'' \15\
---------------------------------------------------------------------------
    \15\ Richard H. Heindel et al., ``The North Atlantic Treaty in the 
United States Senate,'' 43 Am. J. Int'l L. 633, 649, 650 (1949).
---------------------------------------------------------------------------
    Senator Walter George said this about SEATO: ``The treaty does not 
call for automatic action; it calls for consultation. If any course of 
action shall be agreed upon or decided upon, then that course of action 
must have the approval of Congress, because the constitutional process 
is provided for.'' 101 Cong. Rec. 1051 (1955). Nevertheless, the Lyndon 
Johnson Administration cited SEATO as one legal justification for the 
Vietnam War.\16\
---------------------------------------------------------------------------
    \16\ Lyndon Baines Johnson, The Vantage Point 42, 48-50, 356 
(1971); ``The Legality of United States Participation in the Defense of 
Viet-Nam,'' 54 Dep't State Bull. 474, 480-81, 485 (1966).
---------------------------------------------------------------------------
    The War Powers Resolution attempted to limit the effect of mutual 
security treaties. Authority to introduce U.S. forces into hostilities 
shall not be inferred ``from any treaty heretofore or hereafter 
ratified unless such treaty is implemented by legislation specifically 
authorizing'' the introduction of American troops. 87 Stat. 558, 
Sec. 8(a) (1973). The Senate Foreign Relations Committee explained that 
this provision ensured that both Houses of Congress ``must be 
affirmatively involved in any decision of the United States to engage 
in hostilities pursuant to a treaty.'' S. Rept. No. 93-220, at 26 
(1973). These understandings had zero impact on requiring congressional 
approval for the use of U.S. forces operating in conjunction with NATO 
in Bosnia and Kosovo.

                   Eisenhower's Model of Joint Action

    President Dwight D. Eisenhower thought that Truman's initiative in 
Korea was a mistake, both constitutionally and politically. In 1954, 
when Eisenhower was pressured to intervene in Indochina, he told 
reporters at a news conference: ``I will say this: there is going to be 
no involvement of America in war unless it is a result of the 
constitutional process that is placed upon Congress to declare it. Now, 
let us have that clear; and that is the answer.'' \17\
---------------------------------------------------------------------------
    \17\ Public Papers of the President, 1954, 306.
---------------------------------------------------------------------------
    His theory of government and international relations invited 
Congress to enact ``area resolutions'' to authorize Presidential action 
in such trouble spots as the Formosa Straits and the Middle East.\18\ 
He wanted other nations--friend and foe--to understand that Congress 
and the President were united in their foreign policy. His chief of 
staff, Sherman Adams, later recalled that Eisenhower was determined 
``not to resort to any kind of military action without the approval of 
Congress.'' \19\
---------------------------------------------------------------------------
    \18\ Fisher, Presidential War Power, at 104-11.
    \19\ Sherman Adams, First-Hand Report 109 (1962).
---------------------------------------------------------------------------
    Eisenhower emphasized the importance of executive-legislative 
coordination when using military force: ``I deem it necessary to seek 
the cooperation of the Congress. Only with that cooperation can we give 
the reassurance needed to deter aggression.'' \20\ Effective policy 
meant not unilateral decisions by the President but ``joint action by 
the Congress and the Executive.'' \21\ In his memoirs, he explained the 
choice between invoking executive prerogatives and seeking 
congressional authority. On New Year's Day, in 1957, he met with 
Secretary of State Dulles and congressional leaders of both parties. 
House Majority Leader John McCormack (D-Mass.) asked Eisenhower whether 
he, as Commander in Chief, already possessed authority to carry out 
military actions in the Middle East without congressional action. 
Eisenhower replied that ``greater effect could be had from a consensus 
of Executive and Legislative opinion. . . . Near the end of this 
meeting I reminded the legislators that the Constitution assumes that 
our two branches of government should get along together.'' \22\
---------------------------------------------------------------------------
    \20\ Public Papers of the Presidents, 1957, 11.
    \21\ Id. at 12.
    \22\ Dwight D. Eisenhower, Waging Peace 179 (1965).
---------------------------------------------------------------------------
                    Kennedy and Johnson Initiatives

    Unlike Eisenhower, President John F. Kennedy was prepared to act 
during the Cuban missile crisis solely on what he considered to be his 
constitutional authority. Instead of acting under a joint resolution, 
he claimed ``full authority'' as Commander in Chief.\23\ Congress did 
pass a Cuba Resolution, but the resolution did not authorize 
Presidential action. It merely expressed the sentiments of 
Congress.\24\
---------------------------------------------------------------------------
    \23\ Public Papers of the Presidents, 1962, 674, 679.
    \24\ Fisher, Presidential War Power, at 111-13.
---------------------------------------------------------------------------
    In August 1964, President Lyndon B. Johnson asked Congress to pass 
the Tonkin Gulf Resolution. The resolution, authorizing military action 
against North Vietnam, passed the House 416 to 0 and the Senate 88 to 
2. Because of the speed with which Congress debated the resolution 
(acting over a 2-day period) and controversies as to whether the second 
attack in the Tonkin Gulf actually occurred,\25\ many Members of 
Congress came to regret their votes and support a reassertion of 
legislative authority. Out of this activity came the National 
Commitments Resolution of 1969 and the War Powers Resolution of 1973.
---------------------------------------------------------------------------
    \25\ Id. at 115-17.
---------------------------------------------------------------------------
                    National Commitments Resolution

    Hearings by the Senate Foreign Relations Committee in 1967 
highlighted its concern for a ``marked constitutional imbalance'' 
between Congress and the President in determining foreign policy over 
the past 25 years. Chairman J. William Fulbright said that the 
President ``has acquired virtually unrestricted power to commit the 
United States abroad politically and militarily.'' 1969 CQ Almanac 946. 
Two years later the Senate passed a resolution to challenge the 
Presidential power to commit the Nation without first receiving 
congressional authorization.
    The National Commitments Resolution marked a return to Eisenhower's 
philosophy of interbranch cooperation and joint action. Passing the 
Senate by a vote of 70 to 16, the resolution defined a national 
commitment as the use of U.S. armed forces on foreign territory or a 
promise to assist a foreign country by using U.S. armed forces or 
financial resources ``either immediately or upon the happening of 
certain events.'' The resolution provides that ``it is the sense of the 
Senate that a national commitment by the United States results only 
from affirmative action taken by the executive and legislative branches 
of the United States government by means of a treaty, statute, or 
concurrent resolution of both Houses specifically providing for such 
commitment.'' 115 Cong. Rec. 17245 (1969). As a Senate resolution, it 
has no legal effect, but it represents an important expression of 
constitutional principles by a bipartisan Senate.

                       The War Powers Resolution

    The stated purpose of the War Powers Resolution in Section 2(a) is 
``to fulfill the intent of the framers of the Constitution'' and to 
``insure that the collective judgment'' of Congress and the President 
will apply to the introduction of U.S. troops to combat. However, both 
in language and implementation, the resolution has been criticized for 
undermining the intent of the framers and failing to insure collective 
judgment.
    Part of the controversy associated with the War Powers Resolution 
stems from the incompatible versions developed by the House and the 
Senate. The House was prepared to recognize that the President could 
use military force without prior authorization from Congress, at least 
for 120 days. Senators, unwilling to give the President such unilateral 
authority, attempted to spell out the particular conditions under which 
Presidents could act singlehandedly. Armed force could be used in three 
situations: (1) to repel an armed attack upon the United States, its 
territories and possessions, retaliate in the event of such an attack, 
and forestall the direct and imminent threat of such an attack; (2) to 
repel an armed attack against U.S. armed forces located outside the 
United States, and its territories and possessions, and forestall the 
direct and imminent threat of such an attack; and (3) to rescue 
endangered American citizens and nationals in foreign countries or at 
sea. The first situation (except for the final clause) conforms to 
understandings developed by the framers. The other situations reflect 
the changes that have occurred in the concept of defensive war and 
life-and-property actions.
    Pressured to produce a bill, House and Senate conferees fashioned a 
compromise that ended up widening Presidential power. Sections 4 and 5 
allowed the President to act unilaterally with military force for 60 to 
90 days. He could go to war at any time, in any place, for any reason. 
The resolution merely required the President to report to Congress on 
occasion and to consult with lawmakers ``in every possible instance.'' 
It is difficult to see how the breadth of that power can be squared 
with the framers' intent.
    When the bill came out of conference committee, some Members of 
Congress commented on the extent to which military power was tilted 
toward the President. Rep. William Green (D-Pa.), after supporting the 
resolution because it would limit Presidential power, objected that it 
``is actually an expansion of Presidential warmaking power, rather than 
a limitation.'' 119 Cong. Rec. 36204 (1973). Rep. Vernon Thomson (R-
Wis.) said that the ``clear meaning'' of the bill pointed to ``a 
diminution rather than an enhancement of the role of Congress in the 
critical decisions whether the country will or will not go to war.'' 
Id. at 36207. To Rep. Bob Eckhardt (D-Tex.), the resolution provided 
``the color of authority to the President to exercise a warmaking power 
which I find the Constitution has exclusively assigned to the 
Congress.'' Id. at 36208.
    Senator Tom Eagleton (D-Mo.), having been a principal sponsor of 
the resolution, denounced the version that emerged from conference. 
Although the media continued to describe the bill as a constraint on 
Presidential war power, Eagleton said that the bill gave the President 
``unilateral authority to commit American troops anywhere in the world, 
under any conditions he decides, for 60 to 90 days.'' Id. at 36177.
    Beyond these issues of statutory language, implementation further 
expanded Presidential power because of a peculiar feature in the bill: 
the 60-90 day clock begins to tick only if the President reports under 
Section 4(a)(1). Not surprisingly, Presidents do not report under 
4(a)(1). They report ``consistent with'' the WPR. The only President to 
report under 4(a)(1) was President Gerald Ford in the Mayaguez capture, 
but his report had no substantive importance because it was released 
after the operation was over. In its operation, the WPR allows 
Presidents to use military force against other countries until Congress 
adopts some kind of statutory constraint. Federal courts are a 
potential check, but thus far the judiciary has decided that war power 
cases lack standing, ripeness, or have other qualities that place them 
outside judicial scrutiny.\26\
---------------------------------------------------------------------------
    \26\ For further details, see Louis Fisher & David Gray Adler, 
``The War Powers Resolution: Time to Say Goodbye,'' 113 Pol. Sci. Q. 1 
(1998).
---------------------------------------------------------------------------
                       NATO's Military Operations

    President Clinton twice relied on NATO to authorize military 
action, the first in Bosnia in 1994-95, and the second in Kosovo in 
1999. On neither occasion did he seek authority from Congress, even 
though in 1993 he suggested that before using air power in Bosnia he 
might ask for ``authority'' or ``agreement'' from Congress.\27\ Toward 
the end of 1993, however, he repeatedly objected to legislative efforts 
to restrict his military options.\28\ His decision in 1994 to use air 
strikes against Serbian militias was taken without congressional 
authorization. Instead, the decision came in response to U.N. Security 
Council resolutions, operating through NATO's military command. He 
explained: ``the authority under which air strikes can proceed, NATO 
acting out of area pursuant to U.N. authority, requires the common 
agreement of our NATO allies.'' \29\ In other words, he needed 
agreement from England, France, Italy, and other NATO allies, but not 
from Congress.
---------------------------------------------------------------------------
    \27\ Public Papers of the Presidents, 1993, I, 594: Public Papers 
of the Presidents, 1993, II, 1455, 1781.
    \28\ Public Papers of the Presidents, 1993, II, 1763, 1764, 1768, 
1770.
    \29\ Public Papers of the Presidents, 1994, I, 186.
---------------------------------------------------------------------------
    NATO air strikes began in February 1994 and continued into 1995. On 
September 1, 1995, President Clinton explained to congressional leaders 
the procedures used to order air strikes in Bosnia. The North Atlantic 
Council ``approved'' a number of measures and ``agreed'' that any 
direct attacks against remaining safe areas would justify air 
operations as determined ``by the common judgment of NATO and U.N. 
military commanders.'' \30\ On September 12, he said the bombing 
attacks were ``authorized by the United Nations.'' \31\
---------------------------------------------------------------------------
    \30\ Public Papers of the Presidents, 1995, II, 1280.
    \31\ Id. at 1353.
---------------------------------------------------------------------------
    In 1995, President Clinton ordered the deployment of 20,000 
American ground troops to Bosnia without obtaining authority from 
Congress. He approved NATO's operation plan for sending ground troops 
to Bosnia (IFOR), and followed that with the successor plan, 
Stabilization Force (SFOR). He welcomed NATO's decision to approve the 
plan and the ``Activation Order that will authorize the start of SFOR's 
mission.'' \32\ Authority would come from allies, not from Congress.
---------------------------------------------------------------------------
    \32\ Public Papers of the Presidents, 1996, II, 2220 (emphasis 
added).
---------------------------------------------------------------------------
    Actions in Bosnia combined Security Council resolutions and NATO. 
When President Clinton did not have U.N. support for military action in 
Kosovo, he relied entirely on NATO. At a news conference on October 8, 
1998, he stated: ``Yesterday I decided that the United States would 
vote to give NATO the authority to carry out military strikes against 
Serbia if President Milosevic continues to defy the international 
community.'' \33\ The decision to go to war against another country was 
in the hands of one person, exactly what the framers thought they had 
prevented. The war against Yugoslavia began on March 24, 1999.
---------------------------------------------------------------------------
    \33\ Public Papers of the Presidents, 1998, II, 1765.
---------------------------------------------------------------------------
                   Continued Military Action in Iraq

    In June 1993, September 1996, and December 1998, President Clinton 
ordered military operations against Iraq. U.S. military strikes in Iraq 
continued from 1999 to the present day.\34\ There have been no legal 
analyses from the Administration to justify this use of force against 
Iraq, but it can be argued that when Congress passed the authorization 
bill in January 1991, it simultaneously sanctioned future military 
operations authorized by the U.N. Security Council. Such a claim can 
mean: (1) delegating the war power in perpetuity, and (2) surrendering 
congressional power to an international body.
---------------------------------------------------------------------------
    \34\ Fisher, Congressional Abdication on War and Spending, at 80-
82, 105-08.
---------------------------------------------------------------------------
    Here are the specifics. On January 14, 1991, in P.L. 102-1, 
Congress authorized the use of U.S. armed force against Iraq. Congress 
authorized President George Bush to use armed force pursuant to U.N. 
Security Council resolution 678 (1990) ``in order to achieve 
implementation of Security Council Resolutions 660, 661, 662, 664, 665, 
666, 667, 669, 670, 674, and 677.'' This statute is usually interpreted 
as congressional authority to drive Iraq out of Kuwait, which was the 
purpose of resolution 678, adopted on November 29, 1990. All earlier 
resolutions set the stage for 678. Resolution 660, passed on August 2, 
1990, condemned Iraq's invasion of Iraq and demanded immediate 
withdrawal. Resolution 661 imposed economic sanctions. Resolutions 662 
to 677 reinforced resolutions 660 and 661 and added other restrictions.
    How can one argue that Congress transferred its constitutional 
power to the Security Council? It depends on the interpretation of 
resolution 678, which authorized member states to use all necessary 
means ``to uphold and implement 660 (1990) and all subsequent relevant 
resolutions and to restore international peace and security in the 
area.'' Could the phrase ``all subsequent relevant resolutions'' mean 
that whatever the Security Council promulgated after January 14, 1991, 
is automatically sanctioned by P.L 102-1?
    What is the meaning of subsequent? Any resolution issued after 678, 
or any resolution issued after 660 but before 678? It can be read 
either way. The most natural reading, in terms of the purpose of P.L. 
102-1, is to refer to the resolutions from 660 to 678. The statutory 
objective was to oust Iraq from Kuwait. President Bush did not have 
authority to send ground troops north to Baghdad in an effort to remove 
Saddam Hussein. Such an operation would have exceeded his statutory 
authority and fractured the alliance that joined in support.
    The broadest reading is to conclude that Congress, on January 14, 
1991, transferred its constitutional powers to the Security Council, 
and that the future scope of American military commitments is 
determined by UN resolutions, not congressional statutes. From this 
theory, whatever the Security Council decided would apparently compel 
Congress to vote the necessary appropriations to cover the expenses of 
additional military actions. There is no evidence that Congress 
intended such a result, or could intend such a result.

                      The Use of Force Act (2001)

    The joint resolution passed by Congress on September 18, 2001, 
authorized President George W. Bush to use all ``necessary and 
appropriate force'' against nations, organizations, or persons that he 
determines planned, authorized, committed, or aided the terrorist 
attacks of 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.'' 115 Stat. 224. No doubt the statute authorized military 
action against the terrorist structure in Afghanistan. Does it also 
authorize military operations against terrorist units in other 
countries?
    There seems to be little constitutional objection to using U.S. 
forces to help train anti-terrorist organizations in other countries, 
such as the Philippines, Georgia, and Yemen. That kind of assistance 
does not represent war on those countries. U.S. troops are there at the 
invitation and request of the three nations.
    Quite different is the use of military force against another 
country. That is especially so when force is used in a region that is 
so politically unstable that military conflict has the potential to 
spread beyond the target nation. The magnitude of another military 
operation involving a second or third country raises not merely 
practical but constitutional concerns, both in terms of (1) the 
legislative prerogative to take the country from a State of peace to a 
State of war, and (2) the legislative power of the purse. The 
principles announced by President Eisenhower and the National 
Commitments Resolution, calling for joint action by Congress and the 
President, are more than guides for good policy. They represent efforts 
to honor constitutional government.

                       The Value of Consultation

    Policymaking by the Federal Government works better when the 
President and executive officials consult regularly with Members of 
Congress on domestic issues as well as matters of foreign affairs and 
national security. However, consultation is not a substitute for 
receiving congressional authority. Congress is a legislative body and 
discharges its constitutional duties by passing statutes that authorize 
and define national policy. Congress exists to legislate and 
legitimate, including military and financial commitments. Consultation 
is a technique for improving executive-legislative relations, but 
authority incorporated in a public law is the act that satisfies the 
Constitution.

    Chairman Feingold. Thank you very much, Mr. Fisher.
    Now we will here from Douglas Kmiec, who is the dean and 
St. Thomas Moore professor at the Catholic University of 
America, Columbus School of Law. He is an expert in 
constitutional law and has taught constitutional law at a 
number of law schools.
    Dean Kmiec has authored or co-authored numerous books and 
articles on constitutional issues and the role of the U.S. 
Supreme Court.
    From 1985 to 1989, he severed in the Reagan and Bush 
administrations and headed the Office of Legal Counsel in the 
United States Department of Justice.
    We welcome you, Dean, and you may proceed.

STATEMENT OF DOUGLAS KMIEC, DEAN OF THE COLUMBUS SCHOOL OF LAW, 
        CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C.

    Mr. Kmiec. Senator, it is good to be here. And I join the 
others in thanking you for this inquiry into this important 
question.
    I also ask that my written testimony be included in its 
entirety.
    Chairman Feingold. Without objection.
    Mr. Kmiec. I will just briefly make seven points or outline 
seven points that are stated therein.
    First and foremost, it is my judgment that the President is 
constitutionally authorized as Commander in Chief to introduce 
troops into hostilities without prior congressional enactment. 
No President to my knowledge has ever conceded otherwise. No 
Congress to my knowledge has ever fully disputed this point, as 
even the highly controverted and largely admonitory War Powers 
Resolution necessarily concedes the President's constitutional 
assignment to introduce troops without prior congressional 
authority.
    Second, the power to declare war is not a condition 
predicate to the duties of military self-defense imposed upon 
the President by the Constitution. I disagree with my colleague 
Dr. Fisher on the question of when presidential action began 
without congressional authorization. In my judgment, the 
historical record supports the proposition that no President 
from George Washington onward has ever construed the 
Constitution to require prior congressional authority for 
military action.
    I think it is largely modern academic commentary that has 
obscured this point and misstated it. The purpose of a 
declaration of war is largely to define its international 
effect. And something declares when it refers to something that 
is preexisting, like the Declaration of Independence, which 
refers to the preexisting rights that we have by virtue of our 
creation.
    A declaration of war as well refers back either to a 
conflict that has been thrust upon us, like the conflict of 
September 11th, or the President's actions that might be 
properly characterized as anticipatory self-defense.
    In the present war--and this is my third point--the 
Congress by joint resolution has confirmed the President's 
constitutional authority. And it has done so expressly. The 
resolution, when construed together with the President's 
Article 2 power, is ample and plenary, allowing the President, 
together with his military, national security, and homeland 
defense advisers, to determine the timing, scope, and 
appropriateness for military intervention.
    Now, the fourth point is that the Constitution does not 
leave the Congress of the United States without a check upon 
this executive behavior. We know that the Framers of the 
Constitution were very careful to check ambition with ambition. 
The check that I think they largely envisioned in this 
circumstance was indeed the appropriations power.
    No Congress should give a blank check to a President, nor 
is it constitutionally obligated to do so. And no President can 
legitimately expect one.
    That said, Congress oversteps its constitutionally 
determined role if it uses monetary conditions to usurp or 
impede the tactical decisions that only a President can make, 
given the information that he possesses.
    The fifth point assumes the prior four. And it also makes 
the simple proposition that I think is evident to us all. If 
those four earlier points were not true, then most of American 
history and practice would simply be unexplainable. Congress 
has declared war only five times in its history. And yet 
Americans Presidents have undertaken several hundred military 
engagements without advanced congressional authorization, 
including, of course, extended military interventions in Korea 
and Vietnam and elsewhere.
    The sixth point is that the constitutionality of the War 
Powers Resolution has never been conceded by any President nor 
pressed by any Congress. The War Powers Resolution is, in any 
event, fully satisfied by the force resolution of last 
September. Or the actions that the President has taken, as 
Professor Yoo has already articulated, fall well within the 
terms of the War Powers Resolution itself.
    But I would like to just simply emphasize that in my 
judgment the primary infirmity of the resolution lies in a 
faulty assumption; namely, that the Constitution envisioned a 
collective judgment on the introduction of armed forces.
    Respectfully, it does not. It envisions a President capable 
of responding with energy and dispatch to immediate threat, and 
a Congress that can then deliberate on the actions taken and 
through judicious resource choices influence others yet to be 
taken.
    Congress I believe, Mr. Chairman, recognized this 
relationship when it wrote the War Powers Resolution, at least 
in part. If one looks at Section 3, it modified its statutory 
language, recognizing that consultation would often not be 
possible or at least not possible in every instance. In Section 
4, it admits the possibility of presidential deployment with 
notification after the fact.
    My seventh and final point is this: The war on terrorism 
does not alter the constitutional design, nor do I believe you 
want it to or the President wants it to alter that design.
    We are indeed at war.
    But as others have advised you and as you have said on the 
Senate floor, it is a far different war than others that have 
gone before. It is a dispersed enemy, a dispersed enemy needing 
to be constantly addressed and combated. And this type of enemy 
is ill-met by a historically mistaken if academically 
commonplace understanding of the declare war clause.
    Our national interests are equally ill-served, I believe, 
by a wooden interpretation of a likely unconstitutional War 
Powers Resolution that even when enacted largely accommodated 
conventional warfare or deployments on the scale of World War 
II rather than what you yourself have acknowledged is needed 
now; namely, a swifter, often covert joint military and law 
enforcement response to a far more insidious and diffuse enemy 
that is the nature of modern terrorism.
    I thank you. And I would be delighted to answer questions.
    [The prepared statement of Mr. Kmiec follows:]
 Statement of Douglas W. Kmiec\1\, Dean of the Columbus School of Law, 
            Catholic University of America, Washington, D.C.
    Mr. Chairman and members of the Committee:
---------------------------------------------------------------------------
    \1\ Former U.S. Assistant Attorney General, Office of Legal Counsel 
in the Reagan and George H. W. Bush administrations.
---------------------------------------------------------------------------
    Thank you for this invitation to appear before you to address the 
respective authority of the President and Congress in the present War 
on Terrorism.
    The President is constitutionally authorized as Commander in Chief 
to introduce troops into hostilities without prior congressional 
enactment. No President has ever conceded otherwise; no Congress has 
ever disputed this point, as even the highly controverted (and largely 
admonitory) War Powers Resolution necessarily concedes the President's 
constitutional assignment. Today, there are unprecedented terrorist 
dangers aimed directly at the civilian populations of our Nation and 
its allies. Congress shares this concern, rightly so. However, a shared 
concern must not become an occasion to undermine the well settled 
constitutional responsibility of the President. Rather, with great 
respect for the important deliberations of this body, Congress should 
direct its legislative efforts at determining how best the President 
can be supported with the people's resources; not how cleverly the 
President's military judgment can be second-guessed or hampered.
    The power to declare war is not a condition predicate to the duties 
of military self-defense imposed by the Constitution upon the 
President. No President from Washington onward has ever construed it to 
be so, and it is largely modern academic commentary that has obscured 
or misstated this crucial aspect of constitutional understanding. 
Rather, the purpose of a declaration of war is to define the 
international effect of military actions undertaken by direction of the 
President.
    In the present War, the Congress by joint resolution has confirmed 
the President's constitutional authority. That resolution, when 
construed together with the President's Article II power, is ample and 
plenary, allowing the President, together with his military, national 
security and homeland defense advisors, to determine the timing, scope, 
and appropriateness for military intervention.
    Congress's role is one of material support, not tactical judgment. 
As the representative of the people, Congress is obliged to provide 
this support if it determines that our lives, safety and security 
justify the actions being taken by the President. Of course, this 
appropriations-related authority is a well-considered check upon 
presidential action. Prudentially and practically, both the President 
and Congress must necessarily collaborate if wartime efforts are to 
succeed. No Congress should give a blank check to a President, nor is 
it constitutionally obligated to do so, and no President should expect 
one. That said, Congress oversteps its constitutionally determined role 
if it uses monetary conditions to usurp or impede the tactical 
decisions that only the President can make.
    The President has determined that terrorism is worldwide. It exists 
in networks or cells of individuals driven by religious or political 
fanaticism and supported by an international network of drug dealers 
and other shadowy criminal enterprises, not infrequently disguised as 
NGO's and charities. Unfortunately, no credible intelligence suggests 
that the War is confined to one nefarious leader or a single country. 
The successful military campaign in Afghanistan is a start, not a 
finish of this War. Congress, of course, has the formal power--as the 
holder of the Nation's purse--to refuse to adequately support the 
further military efforts to confront what the President has properly 
called an ``axis of evil.'' It can discount the noncompliance of Iraq 
with U.N. sanction and its willingness to use biological weapons on its 
own people; it can turn a blind eye to the terrorist renegades in 
Somalia and the Philippines. At the farthest extreme, the legislature 
is constitutionally empowered even to defund our military and 
intelligence communities. I doubt that few Americans would think the 
exercise of congressional powers in this peremptory way to be 
responsible. In doing so, Congress will have indulged a calculus or 
risk assessment far different from the President, and perhaps, saved 
money. In the President's judgment, the Congress very likely will not 
have saved lives.
    Ultimately in our democratic republic, it is the people who either 
affirm or dispute the policy choices made by their President and the 
Congress. It will then be up to the people to decide which was the 
better course--that of the sword aimed at those who hate the 
responsible exercise of freedom or that of the purse aimed at 
restraining the sword in this mission. Neither the President nor the 
Congress can avoid making its respective judgments. Certainly, neither 
can (or should) use the Constitution as a cover plane for its failure 
to decide.
    The actions being taken by President Bush are well within the 
parameters of the authority given to him by the Constitution. I am 
confident that the U.S. Supreme Court would not say otherwise. Congress 
may decide not to support these actions with the people's money. That 
is its prerogative, and it is one for which it will be held 
accountable.

                          The President's Role

    The President's power to use military force to respond to terrorist 
and other attack is clear. Article II, Section 2 provides that the 
``President shall be Commander in Chief of the Army and Navy of the 
United States, and of the Militia of the several States, when called 
into actual Service of the United States.'' Beyond this, the President 
is fully vested with all executive power and the authority to ``take 
care'' that the laws are faithfully executed.
    Constitutional practice dating to our first president removes any 
doubt that wars were, and can be, fought without congressional 
authorization. During the first 5 years of his administration, 
Washington engaged in a prolonged Indian war in the Ohio Valley. This 
was not a small skirmish, as President Washington himself proclaimed 
``we are involved in an actual war!''--one, by the way, that went badly 
initially for the standing army in 1791. Similarly, John Adams fought a 
naval war with France, known as the Quasi-War that erupted in 1798 out 
of France's interference with our commercial relations with Britain. 
Congress provided the funding, and set the rules for naval engagement, 
but did not declare war, even as the historical record demonstrates 
that one was being fought.
    Many cases affirm the scope of the President's war power, but it is 
particularly well affirmed in The Prize Cases, where the Supreme Court 
opined that it was for Abraham Lincoln, as Commander in Chief to 
determine what necessary means could be used to respond to 
belligerents, for such questions under the Constitution, are ``to be 
decided by [the President].'' \2\ In this century, Attorney General 
(later Justice) Robert Jackson put the matter equally forcefully:
---------------------------------------------------------------------------
    \2\ The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862).

        ``[The President] shall be Commander in Chief. . . . By virtue 
        of this constitutional office he has supreme command over the 
        land and naval forces of the country and may order them to 
        perform such military duties as, in his opinion, are necessary 
        or appropriate for the defense of the United States. These 
        powers exist in times of peace as well as in time of war. . . . 
        [T]his authority undoubtedly includes the power to dispose of 
        troops and equipment in such manner and on such duties as best 
        to promote the safety of the country.'' \3\
---------------------------------------------------------------------------
    \3\ 40 Op. Att'y Gen. 58, 61-62 (1941).

    In writing in these terms, Attorney General Jackson was reflecting 
an unbroken line of undisturbed Federal interpretation that properly 
places both the burden and authority upon the President to preserve 
``our territorial integrity and the protection of our foreign 
interests'' as a matter of constitutional provision, [and not] ``the 
enforcement of specific acts of Congress.'' \4\
---------------------------------------------------------------------------
    \4\ 22 Op. Att'y Gen. 13, 25-26 (1898) (Acting General John 
Richards).
---------------------------------------------------------------------------
    The framers justified this grant of authority to the President by 
the need for military and executive action to be taken with ``secrecy 
and dispatch.'' \5\ Without the quality of what Hamilton referred to as 
``energy in the executive,'' the community would be unable to protect 
itself ``against foreign attacks.'' \6\ These were not merely the 
sentiments of those who favored a strong national government. Thomas 
Jefferson, serving as George Washington's Secretary of State, observed 
that ``[t]he transactions of business with foreign nations is executive 
altogether; it belongs, then, to the head of that department, except as 
to such portions of it as are specially submitted to the senate. [And 
what's more] [e]xceptions are to be construed strictly.'' \7\
---------------------------------------------------------------------------
    \5\ Federalist No. 70 (Alexander Hamilton).
    \6\ Id.
    \7\ Thomas Jefferson, Opinion on the Powers of the Senate (April 
24, 1790), reprinted in 5 The Writings of Thomas Jefferson 161 (Paul L. 
Ford ed., 1895).
---------------------------------------------------------------------------
    This exercise of presidential power has been bi-partisan. For 
example, on August 20, 1998, President Clinton launched an air strike 
against terrorist activity (the African embassy bombings) traced to 
Osama bin Laden. The President acted without congressional 
authorization, and he did so for reasons that are directly applicable 
and similar to the present War on Terrorism: intelligence information 
that traced the bombings to terrorist groups that have acted against 
U.S. interests in the past, and suggested planning for additional 
attacks in the future. These groups were employing or seeking weapons 
of mass destruction, including chemical and dangerous weapons.
    As scholars have pointed out, President Clinton's actions have much 
in common with President Reagan's April 14, 1986 air strike against 
Libya in response to that nation's involvement with the killing of 
Americans and others in Berlin. Like the Clinton actions, the Reagan 
strike was necessary not only in retaliation, but also as a defensive 
and preventative response to a terrorist attack on U.S. military 
personnel and her citizens.

                   The Congress' Power to Declare War

    The Congress' power to declare war is not the power to make war, as 
should be obvious to every American who has lived through both Pearl 
Harbor and September 11. War can be made upon us. As was noted 
expressly in the Constitutional convention, the executive must have the 
power to repel sudden attacks without prior Congressional 
authorization.\8\ The drafters of our Constitution knew how to use 
precise language, and indeed, as careful scholarship has since pointed 
out, ``[if] the Framers had wanted to require congressional consent 
before the initiation of military hostilities, they would have used 
such language.'' \9\
---------------------------------------------------------------------------
    \8\ 2 The Records of the Federal Convention of 1787, at 318-19 (Max 
Farrand ed. rev.ed. 1966).
    \9\ Robert J. Delahunty and John C. Yoo, The President's 
Constitutional Authority to Conduct Military Operations Against 
Terrorist Organizations and the Nations That Harbor or Support Them,'' 
25 Harvard J. Of Law & Puyn. Pol. 488, 491 (2002).
---------------------------------------------------------------------------
    The power to declare war, rather than the power to initiate one, 
was a power to confirm--for international and domestic law purposes--
the existence of hostilities between two sovereigns. This was how 
Blackstone understood the phraseology, and in historical context, how 
it was understood by the framers as well. In the decades leading up to 
constitutional drafting and ratification, declaring war meant not 
authorizing a proper executive response to attack, but to defining the 
relationship between the citizens of warring nations as to, for 
example, the seizure or expropriation, of assets.\10\ Even the use of 
the word ``declare'' in the context of the framing suggests not 
authorization, but recognition of that which pre-exists. This, for 
example, is the usage in the Declaration of Independence, recognizing 
rights that are not created by the government, but pre-exist by virtue 
of human creation. Professor John Yoo (now of the Office of Legal 
Counsel) has ably canvassed this area writing that the declare war 
clause was meant largely to bolster the exclusion of the individual 
states from the question. He summarizes the historical evidence this 
way: ``a declaration of war was understood as what its name suggests: a 
declaration. Like a declaratory judgment, a declaration of war 
represented the judgment of Congress, acting in a [quasi-]judicial 
capacity (as it does in impeachments), that a State of war existed 
between the United States and another nation. Such a declaration could 
take place either before or after hostilities had commenced.'' \11\
---------------------------------------------------------------------------
    \10\ See, e.g., Little v. Bareme, 6 U.S. (2 Cranch) 170 (1804); if 
war is properly declared, the property of belligerents may be seized by 
citizens and sold. If there is no proper declaration, then the property 
must be returned and damages paid.
    \11\ John C. Yoo, The Continuation of Politics By Other Means: The 
Original Understanding of War Powers, 84 Calif. L. Rev. 167, 242 
(1996).
---------------------------------------------------------------------------
    If military activity could only occur upon congressional 
declaration, this proposition would leave most of American history 
unexplained, such as American intervention in Korea, Vietnam, Iran, 
Grenada, Libya, and Panama. Congress has declared war only five times: 
the War of 1812; the Mexican American War of 1848, the Spanish-American 
War of 1898, and World War I (1914) and World War II (1941).
    Some have disputed this account of the declare war clause, arguing 
in support of a congressional pre-condition by reference to Article I, 
Section 8, Clause 11 which gives Congress the power to ``grant Letters 
of Marque and Reprisal, . . .'' This somewhat arcane aspect of 
constitutional text, however, cannot bear the weight of the claim. 
Letters of Marque and Reprisal are grants of authority from Congress to 
private citizens, not the President. Their purpose is to expressly 
authorize seizure and forfeiture of goods by such citizens in the 
context of undeclared hostilities. Without such authorization, the 
citizen could be treated under international law as a pirate. Occasions 
where one's citizens undertake hostile activity can often entangle the 
larger sovereignty, and therefore, it was sensible for Congress to 
desire to have a regulatory check upon it. Authorizing Congress to 
moderate or oversee private action, however, says absolutely nothing 
about the President's responsibilities under the Constitution.
    The drafters of the American Constitution knew how to express 
themselves. They were familiar with State constitutional provisions, 
such as that in South Carolina, which directly stated that the 
``Governor and commander-in-chief shall have no power to commence war, 
or conclude peace'' without legislative approval. Article I, Section 10 
expressly prohibits states, without the consent of Congress, from 
keeping troops or ships of war in time of peace, or engaging in war, 
unless actually invaded, or in such imminent danger that delay would 
not be warranted. There is no parallel provision reciting that the 
President as commander in chief shall not, without the Consent of 
Congress, exercise his military responsibility.
    That the power to declare war is not a power of prior authorization 
does not leave Congress without check upon executive abuse. That check, 
however, is anchored in Congress' control of the purse, and, of course, 
impeachment. When challenged by the anti-federalists, most notably 
Patrick Henry, to explain how tyranny would not result unless the sword 
and purse were held by different governments, Madison responded that no 
efficient government could exist without both, but security is to be 
found in ``that the sword and pursue are not to be given to the same 
member.'' \12\ No reference was made to the declare war clause or 
marque and reprisal letters.
---------------------------------------------------------------------------
    \12\ 3 Jonathan Elliott, The Debates in the Several State 
Conventions on the Adoption of the Federal Constitution at 393 (1836).
---------------------------------------------------------------------------
    How great a role can Congress play in the funding process? Here, 
the historical record would suggest that Congress is as free as the 
people they represent. It may explore and evaluate the military mission 
as the President has outlined it. Congress can refuse to fund the 
continuation of tactical decisions that it believes unsound; Congress, 
however, cannot dictate a particular course of engagement or so fetter 
the President's judgment as to preclude its exercise.

                           The War Powers Act

    It is facetious to suggest that the War Powers Act or Resolution 
[WPR] limits constitutional authority, something which it expressly 
proclaims not to do. (Section 8(d) of the WPR states that ``nothing in 
the Resolution is intended to alter the constitutional authority of 
either the Congress or the President.'') In any event, insofar as the 
WPR presumes to limit the extent of operations already undertaken by a 
president, it ``makes sense only if the President may introduce troops 
into hostilities or potential hostilities without prior authorization 
by the Congress.'' \13\ After surveying comprehensively the large 
number of occasions where the President has deployed troops without 
legislative involvement, the Office of Legal Counsel concluded:
---------------------------------------------------------------------------
    \13\ 18 Op. Off. Legal Counsel 173, 175-76 (1994).

          ``Our history is replete with instances of presidential uses 
        of military force abroad in the absence of prior congressional 
        approval. . . . Thus, constitutional practice over two 
        centuries, supported by the nature of the functions exercised 
        and by the few legal benchmarks that exist, evidences the 
        existence of broad constitutional power.'' \14\
---------------------------------------------------------------------------
    \14\ 4A Op. Off. Legal Counsel 185, 187 (1980).

    Even if the WPR could be construed to statutorily amend 
constitutional text (which it cannot), by its express terms the WPR 
acknowledges presidential power to introduce Armed Forces into 
hostilities as a result of an ``attack upon the United States, its 
territories or possessions, or its armed forces.'' \15\ Certainly, that 
was September 11th. In any event, no president has ever accepted the 
limiting provisions of the WPR.\16\
---------------------------------------------------------------------------
    \15\ 50 U.S. C. 154(c) (1994).
    \16\ 8 Op. Off. Legal Counsel 271, 274 (1984).
---------------------------------------------------------------------------
    No president has ever formally complied with the WPR, even as 
Presidents have used the vehicle to accomplish consultation with 
Congress. For example, both the first President Bush and President 
Clinton sent reports to Congress that were described carefully as 
``consistent with the Resolution,'' but not pursuant to, or required 
by, the WPR. Congress has not sought to use the enforcement mechanism 
under the WPR, though it has occasionally been referenced or advocated 
by individual members.
    Of course, proponents of the WPR take a different view; a view that 
posits the need for specific authorization. As mentioned, this view is 
contrary to constitutional text, history and practice, but in the 
present circumstance, even this objection is superceded by Congress' 
own legislative action.

                   The Effect of the Joint Resolution

    If presidential power apart from congressional authorization was 
somehow questionable as a general matter, it is not open to doubt in 
the present War on Terrorism which Congress has specifically 
authorized. (S.J. Res. 25) [hereinafter ``force resolution'']. The 
force resolution recites that``the President has authority under the 
Constitution to take action to deter and prevent acts of international 
terrorism.'' While this recital might be argued to concede that the 
force resolution, itself, was unnecessary, the better construction is 
one that the force resolution acknowledges the contending views over 
the legality of the WPR and removes all doubt in the present instance. 
The President thus has full legal authority with respect to either 
responding with ``all necessary and appropriate force against those 
nations, organizations, or persons [the President] determines planned, 
authorized, committed or aided the terrorist attacks that occurred on 
September 11, 2001, or harbored such organizations or persons,'' and 
with respect to the steps necessary ``to prevent any future acts of 
international terrorism against the United States by such nations, 
organizations or persons.''
    In my judgment, the force resolution must be read consistently with 
the President's authority. Some have commented that it relates only to 
``individuals, groups or states that [are] determined to have links to 
the September 11 attacks.'' \17\ Yet, Congress clearly intended to 
authorize the President to address terrorist threats of the future, and 
therefore, it is highly reasonable to construe the linkage to 
``nations, organizations, or persons'' broadly, especially as we are 
practically discovering that the terrorist network has manifold 
capacity to direct and aid cells in multiple guises and distant parts 
of the world.
---------------------------------------------------------------------------
    \17\ Delahunty and Yoo, supra at 516.
---------------------------------------------------------------------------
         Whether a War is Properly Waged is Not for the Courts

    The Supreme Court has consistently avoided passing upon the 
legality of particular military engagements, such as Vietnam and Korea. 
Lower Federal courts have also regularly dismissed these matters as 
political questions and non-justifiable. The Persian Gulf War yielded 
two variants on this theme in Dellums v. Bush\18\ and Ange v. Bush.\19\ 
Unusually, in Dellums, the trial court decided that Congress possessed 
sole authority to declare war, and that troop movements authorized 
without congressional approval by the first President Bush might be 
challenged if a majority of Congress or the Congress in its entirety 
joined the litigation. That was not to be, and the suit was dismissed 
as unripe. By contrast, and far more in keeping with past decision, 
Judge Lamberth decided in Ange, the parallel case brought by a deployed 
member of the military, that determining whether the President had 
exceeded either his constitutional authority or violated the WPR was a 
nonjusticiable political question.
---------------------------------------------------------------------------
    \18\ 752 F. Supp. 1141 (D.D.C. 1990)
    \19\ 752 F. Supp. 509 (D.D.C. 1990).
---------------------------------------------------------------------------
    The judicial branch has consistently found any disagreement between 
the President and Congress to be a political question, not susceptible 
to judicial resolution. Common sense and the absence of public measures 
or standards of judgment readily explains why courts would abstain. 
Neither the President nor Congress have that luxury. Both must make 
their constitutionally separate choices. A President who endangers the 
lives of his military unnecessarily (or for a purpose that is contrary 
to the first principles in the Declaration of Independence and 
implemented by the Constitution) or a Congress that obdurately refuses 
to support those engaged in necessary combat will be accountable to the 
people.

                               Conclusion

       does the war on terrorism change the constitutional order?
    The short answer is, no. Yet, as General Joulwan, the former NATO 
Supreme Allied Commander, reflected before the Senate Foreign Relations 
Committee (February 7, 2002): ``we are at war. But it is a different 
war than those we fought in the past. There are no front lines. The 
enemy is dispersed and operates in small cells. The underpinnings of 
this threat are in its religious radicalism and its hatred of the 
United States and the civilization that embraces freedom, tolerance and 
human dignity. It is an enemy willing to commit suicide of its young to 
achieve it s aims and with little regard for human life. While the 
enemy may be small in number it would be wrong to underestimate the 
threat--or the depth of their convictions.''
    Samuel Berger, former National Security Advisor, echoed the same 
sentiment at the same hearing: ``we must continue to take down al Qaeda 
cells, and hunt down al Qaeda operatives elsewhere--in Asia, Europe, 
Africa, here and elsewhere in this Hemisphere. Disruption will be an 
ongoing enterprise--a priority that will require international 
intelligence, law enforcement and military cooperation for the 
foreseeable future. These cells of fanatics will reconstitute 
themselves. We must treat this as a chronic illness that must be 
aggressively managed, while never assuming it has been completely 
cured.''
    A dispersed enemy needing to be constantly addressed and combated 
is ill-met by a historically mistaken, if mistakenly commonplace, 
understanding of the declare war clause. Our national interests are 
equally ill-served by a wooden interpretation of a likely 
unconstitutional war powers resolution that even when enacted largely 
accommodated conventional warfare or deployments on the scale of World 
War II, rather than the needed (and often covert) responses to the 
smaller, yet more insidious and diffused nature of modern terrorism.
    From 1975 through October 2001, Presidents--without conceding the 
constitutional validity of the WPR--submitted some 92 reports under the 
Resolution. In the same period, there were no declarations of war. One 
can argue that the resolution has fostered dialog between the 
legislative and executive departments. So long as that dialog did not 
compromise classified information or strategy and facilitated Congress' 
appropriations role in war making, constitutional purposes were well 
served. Yet, the primary infirmity of the resolution lies in its faulty 
assumption: namely, that the Constitution envisions a ``collective 
judgment'' on the introduction of armed forces. Section 2. It does not. 
It envisions a President capable of responding with energy and dispatch 
to immediate threat, and a Congress that can deliberate on the actions 
already taken, and through judicious resource choices, influence 
others. Congress, itself, recognized this in Section 3, when it 
modified the statutory consultation to ``in every possible instance'' 
and in Section 4 when it admits the possibility of presidential 
deployment without advance reporting and only reporting ``within 48 
hours, in the absence of a declaration of war or congressional 
authorization.''
    Wisely, Congress by its September 2001 force resolution has 
authorized the President to respond to the terrorist threat, as it 
exists--dispersed, chronic and global. In my judgment, the force 
resolution fully satisfies Section 5(b)(1) of the WPR and therefore 
exempts the President's deployment from termination by Congress under 
the controversial time clock set-out in the WPR. Section 5(c)'s 
provision for termination by concurrent resolution is also 
unconstitutional under Supreme Court precedent. INS v.  Chadha.\20\ 
While Congress has attempted to address the gap created by the decision 
in Chadha which held legislative veto devices to be unconstitutional, 
other far more serious constitutional questions would be raised if the 
subsequent 1983 amendment to section 601(b) of the International 
Security and Arms Control Act of 1976 (P.L. 94-329) fixing the WPR 
legislative veto failing is construed to empower Congress to 
countermand the President's military judgment and ``direct'' the 
withdrawal of troops. As suggested above, Congress properly speaks in 
its allocation of funds; the Constitution does not envision that 
Congress would determine the deployment of troops or related law 
enforcement and intelligence personnel--that is for the President.
---------------------------------------------------------------------------
    \20\ 462 U.S. 919 (1983).

    Chairman Feingold. Thank you very much, Dean.
    And now, Alton Frye is a presidential senior fellow at the 
Council on Foreign Relations. He has held a number of positions 
within the council, including that of president in 1993. And he 
currently serves as the director of the council's program on 
Congress and U.S. foreign policy.
    He has also served as a visiting faculty member at a number 
of universities and is a consultant to both legislative and 
executive branches of government.
    Mr. Frye has a doctorate degree from Yale University and an 
undergraduate degree from St. Louis University.
    Welcome, Mr. Frye.

    STATEMENT OF ALTON FRYE, PRESIDENTIAL SENIOR FELLOW AND 
  DIRECTOR, PROGRAM ON CONGRESS ON FOREIGN POLICY, COUNCIL ON 
              FOREIGN RELATIONS, WASHINGTON, D.C.

    Mr. Frye. Mr. Chairman, thank you.
    Brevity discourages diplomacy, so let me be blunt. The 
President is doing his constitutional duty. Congress should do 
its.
    In launching the counterattack on terrorism, President Bush 
has shown leadership of historic caliber. He has blended 
deliberation with energetic action. The administration has made 
a good beginning in a struggle whose contours and duration are 
not yet knowable.
    Congress has also made a good beginning. The broad 
authorization in Senate Joint Resolution 23 clearly targeted 
those responsible for the September 11th massacre. It 
explicitly provided for Congress' continuing engagement in 
future decisions.
    Now the question is how to make that engagement meaningful. 
I offer four observations.
    First, get the premise right. Contrary to many assertions, 
the War Powers Resolution was not conceived as an assault on 
presidential prerogatives. Its prime author, Senator Jacob 
Javits, was deeply committed to a vigorous American role in the 
world. That role requires vigor in both the executive and the 
Congress.
    For complex reasons, Congress had evaded hard choices 
during the Vietnam war. The War Powers Resolution was designed 
to constrain Congress, compelling members to decide whether or 
not to commit the Nation's blood and treasure. The premise of 
the law is to assert and accept the policy burden that the 
Constitution assigns to Congress.
    Second, separate the Congress' policy judgment from 
mandatory implementation. The War Powers Act has worked 
imperfectly. It often breeds tension between the branches. A 
key reason lies in the linkage of congressional judgment on a 
particular use of force with firm deadlines for termination.
    Without abandoning the War Powers Resolution, it may be 
prudent to establish a separate parallel procedure enabling 
Congress to reach the high policy issue in pristine form. A 
concurrent resolution could provide for both houses to vote on 
the basic question: does the Congress authorize the use of 
American military power in the specified situation and for the 
purposes recommended by the President?
    As courts often separate verdict from sentencing, Congress 
may find it wise to separate policy verdict from pragmatic 
consequences. Doing so would create a clear political context, 
either aligning the two branches or facilitating later 
decisions to enforce legislative will. Anticipating such a 
policy vote should induce greater discipline in the executive.
    Third, keep Congress connected to evolving conflicts. 
Uncertain terrain lies ahead in the war on terrorism. Given the 
nature of this conflict, it is neither constitutionally sound 
nor politically reasonable for Congress to limit itself to a 
single decision point. Rather than allowing inferences from 
other legislation, a concurrent resolution procedure should 
provide for frequent, explicit, overt tests of Congress' 
collective judgment about the commitment of U.S. forces.
    These expressions could take the form of votes to accept or 
reject presidential reports of the sort that President Bush has 
been filing consistent with the War Powers Resolution. Those 
report relate to current or perhaps planned deployments.
    The expression of congressional collective verdicts could 
also take the form of expedited votes on privileged resolutions 
presented by any of several committees, Armed Services, Foreign 
Relations, or perhaps Intelligence.
    Fourth, if there is to be consensus in a prolonged 
conflict, Congress must be its engine. This is vital to the men 
and women called on to do violence on our behalf. As former 
Army Chief of Staff General Edward Meyer has written, it is 
essential for ``the people's representatives, the Congress, to 
take a position and not leave the troops dangling on the 
threads of definition and interpretation.''
     Furthermore, recruiting foreign allies in the war on 
terrorism will depend importantly on their confidence that 
American power is governed by an attentive Congress. Thus, the 
enduring necessity is to balance executive potency with the 
legislative review that conveys democratic legitimacy. The 
Constitution seeks not to constrain the presidency but to 
harness both branches to common purpose.
    In approaching the war on terrorism, Congress will need 
imagination to invent effective procedures and courage to use 
them.
    [The prepared statement of Mr. Frye follows:]

   Statement of Alton Frye, Presidential Senior Fellow and Director, 
  Program on Congress and Foreign Policy, Council on Foreign Relations

    Mr. Chairman and members of the Committee:
    Thank you for inviting my views on the perennial constitutional 
dilemmas related to the use of force by the American government. Those 
dilemmas become particularly acute when the Nation is faced with so 
grave and ill-defined a threat as the protracted war on terrorism that 
lies ahead. Because no one can map the precise contours of the 
unfolding campaign against terrorism, it is all the more important to 
design a sound process for engaging both Congress and the executive 
branch in a dependable, continuing partnership to guide our path.
    The preface to this discussion must be an appreciation for the 
prompt and yet deliberate way in which the two branches came together 
in the aftermath of September 11. The nation's righteous anger under-
girded an extraordinary political consensus. President Bush has shown 
exemplary leadership in pursuing the terrorist Al Qaeda network and its 
supporters. Yet the most difficult tasks lie ahead, and sustaining the 
national consensus will depend on effective collaboration between 
Congress and the President.
    An indefinite stream of decisions regarding the use of American 
forces will arise in the coming months and years, and it behooves a 
responsible Congress to make sure that it is prepared to participate in 
them. That objective is important not only as a matter of institutional 
interest in preserving the Congress's constitutional powers, but as a 
prerequisite to shaping, refining, guiding and sustaining the difficult 
actions that President Bush and his successors will surely have to 
undertake.
    Operating in the terra incognita of war against non-state actors 
and sometimes their State sponsors, in a zone where law enforcement and 
military power must be blended, in fields where constitutional concerns 
about civil liberties mingle with complex considerations of national 
security, where the pursuit of American national interest requires the 
enlistment of other governments with interests of their own--the 
President will need and should welcome the active collaboration of 
Congress.
    May I offer two preliminary points:
    First, if not carefully and regularly reconsidered in the context 
of future phases of the war on terrorism, the broad authority conveyed 
to the President by Senate Joint Resolution 23, even after refinement 
in the Senate, could lead to considerable friction between the branches 
over interpretation.
    Second, unless there is continuing consultation in good faith 
between Congress and the Executive, the unity that marks the beginning 
of the campaign against terrorism could degenerate into the profound 
disunity that scarred American politics thirty years ago. One doubts 
that meaningful consultation can be mandated; it must flow from mutual 
sensitivity between leaders in both branches. Nevertheless, the 
incentives for such consultation would certainly be enhanced by a firm 
assertion of congressional prerogatives, not as a challenge to the 
President but as a commitment by the House and Senate to perform their 
own constitutional duties.
    These considerations lend urgency to the subcommittee's inquiry 
into the relevance of the War Powers Resolution to the manifold 
operations likely to arise in the war against terrorism. If the inquiry 
is to be fruitful, however, I believe it must simultaneously understand 
the long-running legislative-executive arguments over war powers and 
strive to move beyond them to invent some fresh approaches. The modern 
debate over war powers is an exceedingly cluttered one, far different 
from the clarity that marked early constitutional history. Amid the 
clutter, in the public debates and the scholarly literature, one will 
find insight and wisdom, but no ready foundation for a viable policy. 
If the Congress and the Executive are to restore a healthy balance to 
managing the war powers they share under the Constitution, they must 
rise above the clutter that litters the political landscape of the last 
thirty years. Both branches are going to have to avoid rigid postures 
and rhetorical poses.

                        1. Get the Premise Right

    To begin with, let us return to first purposes. From the beginning, 
I would argue, the War Powers Resolution has been widely misunderstood. 
Far from being an assault on Presidential power, the Resolution was at 
its inception a mea culpa by legislators, a recognition that Congress 
had failed to meet its constitutional obligations by losing effective 
control of the Vietnam War. As Professor Alexander Bickel lamented in 
1973, a war powers bill became necessary because ``Congress must 
declare its own responsibilities to itself and assume them in principle 
before the country, if it is ever to exercise them in practice in 
particular situations.''
    Among the many contributors to that legislation in the Senate and 
the House--and it is worth remembering that it won the support of more 
than two-thirds of the members in both chambers--no one was more 
central than Senator Jacob Javits. Senator Javits was deeply committed 
to a vigorous and effective Executive as America's agent in foreign 
affairs. He was equally committed to a vigorous and effective Congress. 
For Javits both were indispensable to a potent American role in the 
world. The balance that he and his colleagues sought to fashion was 
intended to invigorate American foreign policy by insuring that 
Congress met its obligations to share in fateful decisions on the use 
of force. Javits thought it was essential, politically and 
constitutionally, to create a procedure that made it difficult, if not 
impossible, for Congress to evade hard choices on the high policy 
issues of war and peace.
    Thus, the War Powers Resolution was designed primarily to constrain 
Congress, compelling members to face within a predictable period and 
under specified procedures the fundamental question regarding military 
action by the United States: Does the Congress endorse or oppose the 
commitment of American blood and treasure to a particular mission? To 
portray the War Powers Resolution as inimical to the President's 
constitutional authority is to misperceive its premise. That premise is 
to assert and to accept the burden of responsible policymaking that the 
Constitution assigns to the Congress.

             2. Separate Policy Judgment From Consequences

    Three decades' experience under the War Powers Act has been mixed, 
but on balance disappointing. Senator Javits had hoped that the measure 
would provide the basis for orderly cooperation between the branches on 
decisions regarding the use of force. The resistance of every President 
to the law, beginning with President Nixon's unsuccessful veto, and the 
Supreme Court's refusal to provide a definitive ruling on the law's 
constitutionality have left a worrisome cloud over legislative-
executive relations in this crucial field. Rather than leaving this 
unwholesome situation to fester and to hamper future interbranch 
cooperation in the war on terrorism or other military crises, there is 
evidently a need to try a new approach. In the spirit of brainstorming 
I would offer a preliminary suggestion.
    Focusing on the initial premise that animated Senator Javits, 
Senator Stennis and others, is there a way to make certain that 
Congress reaches the high policy questions in a timely and appropriate 
way? Perhaps the course of wisdom lies in doing less than the War 
Powers Resolution attempted. By and large the executive has complied 
with the reporting requirements set forth in the 1973 Act, although it 
has played word games by filing such reports as ``consistent with'' 
rather than ``in compliance with'' the resolution. Those reports could 
be the basis for a different response by the Congress.
    Instead of linking the congressional determination on the wisdom of 
a particular use of force with mandated deadlines for withdrawal or 
other stipulations of executive actions, Congress could address the 
basic policy question in pristine form: Does the Congress authorize the 
use of American military power in this situation and for purposes 
recommended by the President? Using expedited procedures similar to 
those in the War Powers Resolution and possibly framing the issue in 
concurrent resolution form, Congress could deal with that question as a 
distinct one, reserving for separate consideration whether and how to 
apply its power of the purse or other authority to enforce its verdict. 
Even when not connected directly to legal mandates, constraints or 
budgets, freestanding policy resolutions can establish the political 
context and the practical premise for implementing and enforcing the 
policy decision. As courts often separate verdict from sentencing, 
Congress may find it wise to separate policy verdict from pragmatic 
consequences.
    As a technical matter, a concurrent resolution approved by simple 
majorities could establish parallel procedures in the House and Senate 
to expedite presentation of and voting on such a policy declaration. 
This need not mean repeal or amendment of the War Powers Resolution, 
for there may be occasions when its binding provisions would be most 
appropriate. For the subtle and shifting possibilities in the war on 
terrorism, however, it could be useful to add the option of timely 
legislative declarations focused exclusively on the high policy 
regarding use of American forces, whether one thought to be imminent or 
one already initiated by the President. Depending on the need to 
receive and assess sensitive information or other factors, Congress 
might wish to debate such a policy resolution in executive session.
    Why would isolating the policy issue in this way be worthwhile? Far 
from being merely hortatory, a clean congressional vote to support or 
oppose the policy of military action in the instant case would provide 
a political context for subsequent decisions by both the President and 
the Congress. The prospect of facing such a vote should induce a degree 
of self-discipline in the executive, discouraging it from assuming that 
it has unfettered discretion to launch an attack and heightening 
awareness that it must frame its plans with an eye to persuading 
Congress.
    Anticipating that such a vote will occur, even without direct and 
immediate connection to fixed timetables for withdrawal, defense 
appropriations or other implications, a prudent executive would know 
that its capacity to sustain a military engagement would be affected 
significantly by the congressional pronouncement on the high policy 
involved. Furthermore, unless the President was confident of winning 
congressional endorsement of the policy, he would have to contemplate 
dire international implications of a negative legislative verdict. A 
division with Congress over such a matter would augur poorly for 
winning support from other governments. Affirmation of the policy, 
however, would strengthen the President's hand in pursuing such action, 
offering the signal of national resolve that is the first desideratum 
whenever the Nation goes to war.
    From the congressional standpoint there are several virtues to 
isolating a vote on the high policy question from the specific 
requirements of the War Powers Resolution. A positive vote would 
maximize American power in the coming engagements by demonstrating 
beyond doubt that the political branches are in accord. Where they are 
not, setting the policy benchmark in this way would create a wholly 
different political context for congressional action to govern further 
military operations. Having made the policy judgment, Congress would 
retain flexibility for fine-tuning the requirements to be levied on the 
executive to meet the legislative policy preference. To be sure, a 
determined president would be expected to fight further on proposed 
legislative provisions to enforce the policy choice.
    But the momentum toward restraint or disengagement would be 
established and the majority that had expressed reservations or 
opposition toward the use of force would be in position to set a 
timetable, phase down or terminate expenditures, or otherwise move the 
government out of the conflict. History makes it apparent that Congress 
will not undercut forces in the field by precipitate withdrawal of 
support, but the direction of policy would obviously place the burden 
on the President to arrange an orderly conclusion to the deployments. 
To put real teeth in the congressional policy verdict, one could even 
imagine subjecting later proposals for expenditures in support of a 
disapproved policy to a point of order in the House or Senate.
    In short there is considerable promise in establishing a procedure 
for Congress to deal with high policy on the use of force as a discrete 
decision, reserving implementation or enforcement for other legislative 
processes.

            3. Keep Congress Connected to Evolving Conflicts

    Steadiness and perseverance are indispensable in warfare, and 
committing the United States to use force carries an inevitable 
implication that the effort will be sustained until the mission is 
successful. Some would argue that too frequent involvement of the 
Congress will risk weakening or qualifying the resolve necessary to 
carry out the military tasks. Popular anxieties percolating through the 
Congress may encourage adversaries to persist in hopes that American 
will and stamina may falter.
    Against those concerns one must weigh other truths. Wars often go 
wrong. Costs in lives or resources prove excessive. New dangers arise 
that may justify a change of course and reallocation of military 
capabilities. Presidents, as well as Congress, can make mistakes--and 
find great difficulty in extracting themselves from commitments gone 
awry. Unless the people and their representatives in Congress give 
sustained support to military action, such action cannot continue 
indefinitely. Just as the executive branch will have to adapt its 
military strategy to changing circumstances in the field, Congress 
needs to retain the ability to adapt and refresh its policy stance in 
light of those changing circumstances.
    For those reasons it is neither constitutionally sound nor 
politically reasonable for Congress to limit itself to a single 
decision point in these matters. Relying on the power of the purse or 
other devices to adjust policy in an ongoing conflict has proven 
generally unworkable, partly because Members of Congress are often 
trapped in a catch 22 dilemma: Cutting off the dollars appears to be 
abandoning troops in the field, but approving the funds may mean 
keeping them there long after Congress has concluded that a change of 
course is needed. To escape from this policy box, it makes sense for 
Congress to provide itself with recurrent opportunities to express its 
verdict directly on the central policy issue of whether to continue the 
military effort or to conclude it. Leaving the congressional position 
to be inferred from votes on other budget authorizations or 
appropriations is a recipe for repeated contention with the executive.
    This problem is bound to be especially acute in the war on 
terrorism. As President Bush said in redeploying U.S. forces last fall, 
``it is not now possible to predict the scope and duration of these 
deployments, and the actions necessary to counter the terrorist threat 
to the United States.'' There will be many branch points in such an 
endeavor. More than a few may involve decisions to take military action 
in additional countries or in different intensity against one or 
another enemy. A blanket authorization--to paraphrase Senator Richard 
Russell on another subject--for the executive ``to go anywhere and do 
any thing'' is hardly in keeping with constitutional values.
    President Bush and his administration have served our country 
magnificently in mounting the action against those responsible for last 
September's massacres in New York and Washington. The Senate also 
served the Nation well by anchoring the President's authority to act 
against those responsible for the September 11 attacks in the context 
of congressional war powers. Senate Joint Resolution 23 wisely limits 
the authorization to the perpetrators and sponsors of the September 11 
attacks. That formulation correctly foresees that other decisions lie 
ahead and that Congress must be party to them explicitly, not passively 
or inferentially.
    To play its constitutional role constructively in these 
circumstances, it makes sense for Congress to adopt a two-track 
approach to its ongoing policy assessments of the war on terrorism. In 
keeping with the theory set forth earlier, I would look to devices that 
permit Congress to articulate its policy verdict without linking that 
verdict to immediate legal constraints on the president's action.
    First, noting that President Bush has now filed two reports 
``consistent with the War Powers Resolution,'' such reports can be a 
suitable trigger for an expression of congressional judgment regarding 
the policy. I would recommend that in the future each such report 
should be the occasion for priority debate in both Houses and for an 
appropriate policy resolution by each chamber. A standard formula for 
such a resolution, perhaps in language simply accepting the executive's 
report, could build on the presumption that the President's policy 
enjoys legislative support. Approval of such a resolution would 
reaffirm the alignment of Congress with the President. Rejecting or 
tabling such a resolution would signal an altered political context in 
the relationship with implications for subsequent action in Congress, a 
fact that should influence Presidential management of the particular 
military engagement.
    Second, since not every key decision point in the war on terrorism 
will be advertised by a Presidential report, Congress needs options to 
lay down policy markers of its own regarding particular contingencies. 
Again the challenge is to prepare a procedure which permits and obliges 
the Congress to express a collective policy view on an expedited basis. 
Without depending on a Presidential report to trigger such a procedure, 
one might consider empowering any of the relevant committees--Armed 
Services, Foreign Relations, and perhaps Intelligence--to present a 
privileged resolution for prompt debate and action in the full chamber. 
I do not offer a set formula for such a resolution, but conceive of it 
a conveying approval or disapproval of using appropriate force against 
a specified group or state. It might be best to consider any such 
proposal in executive session, both at the committee and at the full 
Senate or House level. Deliberations in executive session could make 
clear to the executive branch where Congress stands on the contingency, 
while not alerting a potential adversary.
    Synchronizing action between the House and Senate might well be 
accomplished through the concurrent resolution described earlier, 
committing each house to act on any such privileged policy resolution 
approved by the other. As a more general mechanism not reliant on 
specific initiatives to trigger debate, perhaps Congress should 
schedule periodic votes at regular intervals of 3 or 6 months to 
provide an opportunity to refresh or refine its policy perspective on 
the campaign against terrorism.
    Let me stress that the concept here goes beyond congressional 
hearings and reports. Useful as committee hearings may be, I believe 
the Congress as a whole needs to construct a stream of regular, 
collective verdicts to test and convey its current stance on the 
evolving campaign against terrorism or other uses of force.
    Measures along these lines are problematic in a number of ways. 
They could become mere exercises in rubber stamping executive 
preferences. On the other hand Congress might well amplify popular 
sentiments surging through the land in ways that distort national 
policy. Congressional intrusiveness during the Civil War left 
generations of American politicians leery of too active a legislative 
role in military affairs. There is surely a danger of untimely or ill-
advised congressional interventions in plans or operations that depend 
on secrecy to be successful.
    The faith of representative democracy, however, is that members 
would approach such choices with the gravity they deserve. There would 
be no cheap or easy votes on policy expressions of this nature. 
Undoubtedly, there will be occasions when the executive branch would 
prefer Congress to remain silent on delicate questions of statecraft 
and national security; if persuaded, a majority would have the option 
to hold its tongue by tabling a resolution of this kind.

             4. Consensus is Essential to National Cohesion

    The case for active, continuing congressional engagement on the 
many issues of high policy presented by an open-ended campaign against 
terrorism does not rest on an instinct for institutional self-
aggrandizement. It is grounded in the critical need to forge and 
maintain America's social cohesion as a Nation caught up in war. War, 
especially prolonged war, always poses the risk of depleting that 
cohesion, so vital to domestic harmony and international effectiveness.
    Members of Congress should also realize how essential their 
involvement is to the morale and cohesion of the military men and women 
sent to do violence on our behalf. One of our most distinguished and 
thoughtful military leaders, former Army Chief of Staff, General Edward 
Meyer, emphasized that point some months ago. In a letter to 
Congressman Thomas Campbell, who was then seeking a definitive judicial 
ruling on the constitutional balance of war powers, General Meyer 
wrote, ``I believe it is essential that when American servicemen are 
sent into combat that they have the support of their fellow Americans. 
The War Powers Act causes the people's representatives (the Congress) 
to take a position, and not leave the troops dangling on threads of 
definition and interpretation.'' The parallel, policy-centered 
procedures outlined here would serve that same need.
    Congress's stand on how our Nation uses the mighty arsenal at its 
disposal also bears crucially on America's standing in the world. Even 
among our closest allies, American power elicits mixed emotions: awe 
and fear, respect and anxiety. That should surprise no one. Military 
and economic capabilities of the magnitude America possesses cannot 
fail to cause alarm in other countries, however benign our intentions. 
That alarm is heightened to the degree that American force appears to 
be too easily deployed. In the eyes of others, no less than of our own 
citizens, American military action may be seen as most legitimate when 
it is demonstrably subject to democratic governance. This insight is 
akin to Justice Jackson's memorable formulation that the President's 
power is at its maximum only when he acts ``pursuant to an explicit or 
implied authorization of Congress.''
    Marshaling international coalitions to wage the war on terrorism 
will depend importantly on giving our allies confidence that American 
power is guided and restrained by a disciplined relationship between 
Congress and President. Absent attentive, persistent congressional 
involvement, public diplomacy in the war on terrorism could lose much 
of the credibility that arises from the perception of America as a 
model of representative government.
    There is thus an enduring necessity to balance executive potency in 
military endeavors with the legislative review that provides democratic 
legitimacy. The challenge is not to enchain the presidency but to 
harness both branches to common purpose. On that insight the War Powers 
Resolution was founded, and in that insight may be found the germ of 
other innovations to guarantee that Congress will play its proper 
constitutional role in the war on terrorism.

    Chairman Feingold. Thank you.
    I have not interjected to this point, but I just want to 
underscore something you just said. I think some people assume 
that this topic means that I or anyone else is complaining that 
the executive is running roughshod here and that it is Congress 
complaining. I mean, that can be part of it. Certainly, there 
are issues about consultation.
    But I think you hit the nail on the head when you indicated 
this also has to do with Congress not necessarily eagerly 
asserting the powers that it has. It is a pretty good deal for 
Congress, if tough decisions about war are made by the 
executive; if things do not go well, they are not responsible. 
If they go well, they can say, ``We were with him all the 
way.''
    And what it destroys, in my view, is a delicate balance 
that was intended where this is a joint process between the 
executive and the Congress.
    So I just think it is important that it has to do 
significantly with congressional acquiescence and failure to 
assert its authority. It is not simply a question of somehow 
the executive not showing leadership, which I certainly think 
the executive has shown strong leadership.
    The second point I just want to make here that your 
comments stimulated has to do with what I have observed back in 
my State as I go to every one of my counties every year and 
hold town meetings. I held a number of the town meetings right 
after September 11th, and people were enormously accepting and 
pleased that there seemed to be a consultation and contact 
between Congress and the executive. And they felt comforted by 
that, just as they were by the sight of Members of Congress 
singing ``God Bless America'' on the steps of the Capitol on 
September 11th.
    What I am observing now, though, as I hold these meetings, 
is some anxiety, a feeling that the elected representatives are 
not as involved in this--whether that is true or not, there is 
a perception out there--and that the people themselves are not 
very comfortable with knowing where we are going. Although they 
accept the fact that they cannot know everything, just as 
Members of Congress have to accept that.
    So these are two ways in which I want to clarify some of 
the reasons why it seems so important to me that we grapple 
with this issue.
    And I appreciate your testimony.
    Next is Ruth Wedgwood, who is the Edward B. Burling 
professor of international law and diplomacy and director of 
international law and organization at Yale Law School and at 
the School of Advanced International Studies. She is also 
currently a senior fellow for international law and 
organizations at the Council on Foreign Relations. She serves 
on the U.S. Secretary of State's Advisory Committee on 
International Law and the National Security Study Group of the 
Hart-Rudman Commission. She was also chief of staff to the head 
of the Criminal Division in the U.S. Department of Justice and 
chaired the Attorney General's Working Group on FBI Informant 
and Undercover Guidelines.
    She is a former federal prosecutor in the Southern District 
of New York.
    Professor Wedgwood has written extensively on international 
law questions.
    And we welcome you. You may proceed.

STATEMENT OF RUTH WEDGWOOD, PROFESSOR OF LAW, YALE LAW SCHOOL, 
   AND EDWARD B. BURLING PROFESSOR OF INTERNATIONAL LAW AND 
   DIPLOMACY, PAUL H. NITZE SCHOOL OF ADVANCED INTERNATIONAL 
        STUDIES, JOHN HOPKINS UNIVERSITY, BALTIMORE, MD

    Ms. Wedgwood. Thank you very much, Senator Feingold.
    I have to admit initially I am an undeclared participant in 
the longstanding debate on the War Powers Act. I have not 
written extensively in the area, though I have my views.
    And I think the reason why I have often been reluctant to 
commit to writing, although I will do it so this afternoon, is 
that on many occasions I think it is best that disputed 
constitutional issues not be resolved. You can have colorable 
arguments on both sides. And often I think the interbranch 
relationships work best when there is a healthy respect by each 
side for the plausible arguments that each side can make upon 
the Constitution.
    Any sensible President will want to consult with Congress 
frequently, which I think President Bush fully appreciates.
    That said, I have to admit that deep down I am an 
unrepentant Hamiltonian, with a rather strong notion of 
executive power, because of all the reasons that Alexander 
Hamilton cited in the Federalist Papers, which is that 
oftentimes in foreign policy one is going to need stealth, 
secrecy, and speed.
    And if one believes in a practical Constitution, which I 
do, the present circumstance where we have to fight an 
adversary of a sort we have never had before is all the more 
occasion, I think, for having perhaps to concede that a 
President has to be given some latitude.
    Al Qaeda is different. The martyrdom cult means they are 
undeterrable. They have no territorial base so you do not know 
where to find them. They are patient. I mean, for many of us 
have been with great chagrin waiting for the other shoe to 
drop. And the fact that things have been okay so far is no 
great comfort, because the one thing that al Qaeda has shown 
over the last 10 years is they will wait until we are not 
watching.
    So this kind of indefatigability and patience on the part 
of the adversary I think may make 60-day, 90-day time 
limitations particularly impractical, even if those limits 
worked adequately well back in the days of land warfare where 
the Powell-Weinberger doctrine of overwhelming force often 
seemed to be coincident in the practical time that we needed to 
commit to finish off those other kinds of war.
    The stakes are different too. You spoke eloquently about 
the problem of imminent hostilities and the lives of our armed 
forces and putting folks in harm's way. But this war is 
different, as we all well know, because the folks in harm's way 
include civilians. And this is the first time we have had an 
adversary who deliberately sought to target civilians.
    I teach law of war. And this is just the anomalous case. 
This violates every ordinary norm even of terrorism amongst 
terrorists, targeting civilians in this number. And I think 
there are serious people who still worry about radiological 
bombs and nuclear devices in this town.
    So when it comes to the President's power, I am happy and 
grateful that the Congress has given broad authorization 
heretofore through its joint resolutions, which moots out, I 
think, many of the constitutional questions, because when you 
do look at the resolution of September 18th, I think the 
Congress did generously go out of its way to give the President 
a great deal of latitude to try to roll up the network of every 
organization that was involved in cooperation with al Qaeda in 
the September 11th attacks. And that I think was foresighted on 
the part of Congress.
    And in addition, I think it was generous and appropriate of 
Congress to acknowledge openly and plainly in the text of that 
resolution that the President has some independent authority 
under Article 2 of the Constitution.
    On the question of Iraq, which I know we are not going into 
that specifically, but I would just note for the record, since 
I do teach UN issues at Yale and Hopkins, and this is often 
before me. There has, in a sense, been a continuing conflict 
with Iraq since 1991. Often we are asked, ``Why don't you have 
to go back to the Security Council for a new resolution for 
your pinprick bombings in 1993 or 1998?'' the attempts we made 
to try to give teeth to the UN weapons inspection commission.
    And the answer has always been that the war was concluded 
only by a cease-fire that had conditions; Iraq has never met 
those conditions. The conditions of Resolution 687 have been 
openly flaunted by--the violation has been openly flaunted by 
Saddam Hussein.
    And therefore, in a real sense, we argued before the UN, 
the initial 1991 conflict has not really been concluded. It has 
been in quiescence.
    But the no-fly zones north and south, the constant 
vigilance we maintain to take out Iraqi radar and antiaircraft, 
and the several occasions when we have used direct bombing 
campaigns to remind Saddam Hussein we are serious about weapons 
inspection, have all been under the umbrella, so far as the UN 
is concerned, of that initial resolution, and, I think, 
therefore, in parallel, the umbrella of the Congress' approval 
of the use of armed force to enforce those resolutions.
    Let me just say--I do not want to take more than a moment 
more--what I think may make it particularly difficult to make 
public, certainly, and even to broadcast largely some of the 
intelligence upon which the administration may have to act. I 
do hold that in general it is real hard to separate diplomacy 
from deployments of force. Every time a carrier battle group is 
sent somewhere to send a signal, in a sense, the President is 
deploying significant armed force, equipped for combat always. 
Or when we flow troops in just to give a signal, there is a 
subtle ebb and flow of diplomacy and deployments.
    And I think in the post-Vietnam trauma, I am not sure that 
every academic or every Congressperson at that moment was in a 
mood to appreciate the necessary intermarriage of diplomacy and 
deployment.
    But the powers of Commander in Chief and the powers of the 
President to conduct diplomacy I think inevitably involve an 
ability to certainly signal commitments in an attempt to 
undertake soft forms of deterrence by deploying troops and 
equipment abroad.
    But in this particular case, where WMD is so different, we 
are all used to the wording of the Caroline case, the Daniel 
Webster decision in 1842 which talked about anticipatory self-
defense, that you do not have to wait to receive the first 
blow. And in the Caroline case, Webster put it almost in spot 
market kind of rhetoric. He said you can reply before attack 
where there is a threat that is instant, overwhelming, leaving 
no choice of means and no moment for deliberation. But that is 
the moment before.
    With WMD, we may need a far more vigorous and earlier 
response. Elihu Root had a very different way of putting it, 
Secretary of State, Secretary of War. He spoke of the right of 
the state to protect itself by preventing a condition of 
affairs in which it will be too late to protect itself.
    And here, where we face the danger of off-camera handoffs 
by Saddam Hussein to al Qaeda, our worst nightmare is the 
unobserved subcontracting by a rogue state to a terrorist 
network in an attempt to obscure the authorship of an attack. 
We may well have to engage in preemptive self-defense.
    And because of that necessity, I think it also makes it 
more difficult to consult in the particular with Congress. I 
think it is very important to have these kinds of policy 
discussions with Congress and always take on board Congress' 
views. But if you did have that possibility of preemptive self-
defense, you do not want to let the other guy know you are 
coming, because if the other guy did have a WMD by that time 
and he knows you are coming, he will let loose.
    So the whole point of preemptive self-defense is to be 
stealthy and secret and quick. And in this town, as we all 
know, if you tell anything to more than three people, in any 
branch of government, you have problems.
    So in practical, human terms, normal human foibles, I think 
these are discussions that one has to have in principle rather 
than in the real-time of the particular occasion for response.
    I do think it is an unprecedented kind of situation, but it 
is there.
    And finally, my favorite part of the Constitution, which I 
always think is underappreciated just because it has to do with 
states rather than the Federal Government, but Article 1, 
Section 10, which says--with language that goes well beyond the 
War Powers Resolution, may I say--that even Governors, simple, 
humble Governors, Governor Pataki of New York, say, can engage 
in war where they are actually invaded or face imminent danger 
as will not admit of delay.
    So I do think the drafters of the War Powers Resolution 
perhaps had an incomplete contemplation of that moment. They 
speak only of actual invasion or actual attack. In real-life, 
strategic relationships you have to be able to think about 
participatory self-defense and preemptive self-defense.
    Thank you.
    [The prepared statement of Ms. Wedgwood follows:]

   Statement of Ruth Wedgwood, Professor of Law, Yale Law School and 
Edward B. Burling Professor of International Law and Diplomacy, Paul H. 
     Nitze School of Advanced International Studies, Johns Hopkins 
                       University, Baltimore, MD

    I appreciate the opportunity to appear before this Subcommittee to 
discuss the mutual powers of the President and the Congress in the 
support of our Nation abroad and in its defense against our 
adversaries. September 11 has posed an extraordinary challenge for 
America, in assessing how to safeguard our territory and our citizens 
against weapons of mass destruction and radical terrorist networks such 
as al Qaeda.
    In the cold war, we were committed to the containment of the Soviet 
Union, and created an effective architecture of political and defense 
alliances in order to carry out that purpose. The Congress was 
centrally involved in the creation of that architecture, through the 
appropriation of funds and oversight of their expenditure, in the 
advice and consent of the Senate to treaties of alliance, and in the 
important consultations of the executive branch with Congressional 
leadership. The strategy of deterrence depended on both nuclear and 
conventional forces and gave some stability to the cold war world, even 
while the Soviet Union and its allies often posed significant 
challenges.
    The end of the cold war world has not permitted any easy repose. 
Indeed, we now face a situation that is, in many ways, less stable. The 
danger of a radicalized and militant Islamist movement that seeks to 
use terror tactics against the West has shown us the difficulties of 
reconstructing a secure environment. The terrible events of September 
11--with the hijacking of four civilian airplanes, the fiery 
destruction of the World Trade Center towers, and the attack on the 
Pentagon--have taught us that national boundaries will not be 
respected. The attacks by al Qaeda deliberately targeted civilians at 
the start of their working day, causing the death of over 3,000 
innocent people. The planners evidently sought to kill many thousands 
more, since at its peak the Trade Center housed over 25,000 workers. In 
a real sense, al Qaeda has already exceeded the limits of more familiar 
terrorist action, and established a new norm of death and destruction. 
Al Qaeda's interest in acquiring weapons of mass destruction, including 
chemical, biological, radiological, and nuclear devices, is thus a 
cause for grave alarm. One fears to contemplate the potential use of a 
nuclear device in an American city.
    The terrorist networks of radical Islam have made a cult of 
martyrdom, and in that setting, our accustomed strategy of deterrence 
will not work against them. Al Qaeda often does not claim public 
authorship of its attacks, and thus we may not know immediately against 
whom to retaliate. The terrorist networks operate surreptitiously 
within a host of territorial bases; often we must act against them 
quickly and in confidence, before their operatives pack their bags and 
flee to a new base. Al Qaeda has also shown entrepreneurial talent, in 
soliciting alliances with other groups. Thus, we will encounter 
instances where the corporate structure of the terrorist network is not 
crystal clear.
    Nonetheless, acting effectively and in real time is of central 
importance--for we must seek to interrupt the ongoing plans of al Qaeda 
and its host of recruits before they act against innocent civilians. 
This is not, in the main, a territorial war, but rather a war against a 
network. The flexibility of network architecture may demand a 
flexibility in our own response. Intelligence will be key, including 
the ability to keep it close. The airstrikes of August 1998 tried to 
target some of bin Laden's lieutenants but missed their meeting at an 
Afghan training camp by several hours.\1\ So, too, our ability to carry 
out operations to seize terrorist suspects abroad, with or without the 
cooperation of a host government, may depend on delicate matters of 
timing and coordination. Sometimes cooperative governments may not wish 
to be seen helping us, for fear of retaliation or political 
consequence, and an element of a successful strategy will require a low 
profile.
---------------------------------------------------------------------------
    \1\ See Ruth Wedgwood,  The Law at War; How Osama Slipped Away, The 
National Interest, Winter 2001/02.
---------------------------------------------------------------------------
    In all of this, the lives of innocent civilians will hang in the 
balance. Over the last decade, al Qaeda has carried out its campaign 
against American military and diplomatic assets, but it has continued 
on a second track with a war of terror against civilians as well. Under 
the fatwa of Osama bin Laden, there are no innocents in the West. The 
plan to bomb ten civilian airliners over the Pacific in the mid-1990's 
was thwarted only because of a chance fire in the Manila apartment of 
Ramsey Youssef. So, too, only the chance availability of an informant 
allowed us to intercept al Qaeda's plans to bomb the Lincoln and 
Holland Tunnels and the United Nations. We will continue to act against 
al Qaeda through a variety of means, including arrest and criminal 
prosecution. But we newly recognize that the concerted nature of al 
Qaeda's campaign against the West amounts to war as well as crime.
    In addition, we will have to address the problem of rogue states 
that may hand off weapons of mass destruction to these terrorist 
networks. The traffic between State parties and non-state actors can be 
complicated. Iraq, for example, may find the intifada in the West Bank 
to be a convenient diversion against any regime change in Iraq, and may 
choose to support that violence. Despite its past differences with the 
Taliban, Iran may find al Qaeda of interest as an antidote to the 
West's new presence on its eastern border. As of 1998, Iraq was 
evidently interested in subcontracting the production of chemical 
weapons to Sudan, or elsewhere, in order to evade U.N. inspectors, and 
apparently discussed cooperative ventures in this regard with 
representatives of al Qaeda.\2\ We thus may confront a shifting array 
of malign partnerships, where evil deeds have numerous authors.
---------------------------------------------------------------------------
    \2\ See Ruth Wedgwood, Responding to Terroism: The Strikes Against 
bin Laden, 24 Yale Journal of International Law 559, 571-72 nn. 50 and 
52 (1999).
---------------------------------------------------------------------------
    What does this mean for partnership between the Congress and the 
executive branch? Of course the power to declare war still belongs to 
the Congress, and the confidence of Congress is a valuable asset for 
any President in a difficult security environment. In the last half 
century, the initiation of conflict has rarely been accompanied by 
formal declarations of war, to be sure--perhaps because the U.N. 
Charter speaks of ``self-defense'' rather than war,\3\ perhaps because 
war connotes an all-out conflict of a sort states are eager to avoid. 
The founders of the Republic did not clarify the allocation of 
authority for the use of force short of war. Rather, this has been left 
to constitutional good sense and good relations between the branches.
---------------------------------------------------------------------------
    \3\ See United Nations Charter, Article 51.
---------------------------------------------------------------------------
    We are all familiar with the famous change in the final text of 
Article I of the Constitution, in the midst of the Philadelphia 
Convention. A proposal to endow Congress with the power to ``make'' war 
was instead changed to give Congress the power to ``declare'' war. A 
President remains dependent on the Congress for the fiscal support of 
his foreign policy, and the raising and support of the armed forces.\4\ 
He will wisely consult with Congress on matters of importance. 
Nonetheless it is important to recognize that the limited use of force 
is interwoven with the very conduct of American diplomacy and 
statecraft. There have been several hundred instances in which limited 
armed force has been deployed to protect American lives and property, 
or to signal American commitment to a course of action. At times, 
indeed, it may be hard to distinguish between a President's power to 
conduct diplomacy and his power to deploy ground troops and maritime 
assets. The poster of a Norfolk shipbuilding company once made the 
point directly--depicting a gray hulking American aircraft carrier 
against a black background. The caption beneath the carrier read: 
``70,000 tons of diplomacy.'' We often use the movement of our military 
assets and personnel around the world as a way of signaling to foreign 
adversaries that we are serious, and this movement has been thought to 
fall within the President's constitutional power as Commander-in-Chief.
---------------------------------------------------------------------------
    \4\ See United States Constitution, Article I, Section 8 (power of 
Congress to raise and support armies). Congress' additional power to 
grant ``letters of marque and reprisal'' to commission naval privateers 
dates from the time when the United States still lacked an adequate 
public navy. Instead, America relied on private vessels operating under 
public commission to disrupt enemy shipping in wartime. Privateering 
was abandoned in the mid-to-late nineteenth century.
---------------------------------------------------------------------------
    We also use the deployment of assets as a method of subtle 
deterrence. For example, in 1996, we were faced with a Chinese 
adventure against Taiwan. China bracketed Taiwan with missile shots to 
the north and the south of the island. In response, the President acted 
on the recommendation of Secretary of Defense William Perry to send two 
carrier battle groups through the Taiwan Straits--an area through which 
we enjoy navigation rights but which otherwise might fall within the 
exclusive economic zone of China. The movement of one battle group 
through the straits would have been ordinary. The movement of two 
carrier battle groups signaled to the Chinese that we did not 
appreciate their attempt at intimidation.
    In the attempt to assure an appropriate role in consulting with the 
President on major foreign policy decisions, the Congress has wisely 
understood the need to allow this flexibility in the deployment of 
military assets. So, too, the Congress has understood that a President 
needs to be able to signal commitment and deter adversaries by 
intimating that the use of force may be forthcoming.
    One sees this concern for balance in the ultimate limits of the War 
Powers Resolution. Observers have often criticized the War Powers 
Resolution for setting in motion a 60-day clock limiting our foreign 
engagements, tempting a martial adversary to lie in wait until the 
clock has run out. Perhaps serendipitously, the time limits of the War 
Powers Resolution most often have matched up with our military doctrine 
of using overwhelming force, so that a conflict can be quickly 
concluded. But the practical adaptation of the War Powers Resolution 
may be aided by the Congress' wise acknowledgement, in Section 8(d)(1), 
that the joint resolution was designed to facilitate consultation, but 
was never intended to trammel on the President's inherent powers as 
Commander in Chief. We have a long tradition of reading statutes 
practically, in order to avoid close constitutional questions. That 
same principle applies here. It would be imprudent to suppose a clock 
starts running every time a President sends a carrier battle group on 
``innocent passage'' through an adversary's territorial waters, or 
flows forces quietly into a region in order to signal resolve to an 
adversary. The Congress's practical reading of Section 4 of the War 
Powers Resolution has acknowledged this. So, too, Presidents have tried 
to respect Congress's need for information by sending reports that are 
``consistent with'' (if not pursuant to) the War Powers Resolution.
    In the current situation, Congress has acted wisely to give the 
President broad authorization for action. In the joint resolution of 
September 18, 2001,\5\ the Congress declared that the horrendous acts 
of violence against the United States were an ``unusual and 
extraordinary threat'' to our national security. Congress authorized 
the President ``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.'' The 
aim, as Congress noted, is ``to prevent any future acts of 
international terrorism against the United States by such nations, 
organizations or persons.'' The central importance of this preventative 
aim gave Congress good warrant for permitting the President a broad 
range of action.
---------------------------------------------------------------------------
    \5\ Senate Joint Resolution 23, Pub. L. 107-40, 115 Stat. 224 
(Sept. 18, 2001).
---------------------------------------------------------------------------
    The initial strategy has been to oust al Qaeda from its comfortable 
sanctuary with the Taliban in Afghanistan, and to overthrow the Taliban 
regime. Denying al Qaeda any safe haven in Afghanistan has disrupted 
its operations, at least for the moment, and has rescued the civilian 
population of Afghanistan from the Taliban's brutal oppression. But 
Congress's foresighted resolution also appropriately permits the 
President to pursue al Qaeda in any other venue where it may set up 
shop or seek alliances.
    So, too, the Congress reiterated, in its preamble in the September 
18 resolution, that the President ``has authority under the 
Constitution to take action to deter and prevent acts of international 
terrorism against the United States.''
    Finally, the resolution notes that it constitutes specific 
authorization for the use of force under the War Powers Act, per 
section 8(a)(1).
    The Executive will undoubtedly wish to consult with the leadership 
of Congress at regular intervals, consistent with its duty to protect 
sensitive operational intelligence. But it is worth reiterating that 
the September 18 resolution does not limit the fight against al Qaeda 
and its allies to any particular country or territory. On September 28, 
the Security Council similarly acted to forbid countries from assisting 
international terrorist groups in any way, under a newly rigorous 
standard against aiding and abetting.\6\ The Congress's wisdom is thus 
coordinate with the strategy of the larger international community, 
reflected by the Council.
---------------------------------------------------------------------------
    \6\ Security Council Resolution 1373, September 28, 2001.
---------------------------------------------------------------------------
    The question has been mooted, lately, whether there is any basis 
for the use of force against the regime of Saddam Hussein in Iraq. In 
this regard, the September 18 Congressional resolution may be 
applicable if the President concludes that available intelligence 
indicates past or ongoing cooperation between Saddam and al Qaeda.
    In addition, one may note the pertinence of United Nations 
resolutions concerning Iraq, dating from 1990 and 1991,\7\ and 
Congressional authorization of the use of armed force against Iraq in 
the effort to ``achieve implementation of [those] resolutions.'' \8\ 
The United States has used air power against Iraq on a continuing basis 
since 1991, even after the expulsion of Iraq from Kuwait in Desert 
Storm. Our air patrols have enforced the no-fly zones in the north and 
south of Iraqi territory, in an attempt to protect the Kurds and the 
Marsh Shia. Almost without surcease, Iraq has acted to threaten our 
patrols, using radar to ``paint'' allied aircraft, and we have 
responded with munitions to remove the threatening radar and anti-
aircraft installations. So, too, we have used air power on a continuing 
basis to force Iraq to meet its obligation to give up the development 
of weapons of mass destruction, including nuclear, chemical, and 
biological weapons. On at least two occasions, in 1993 and 1998, we 
have used pinprick bombing attacks against Iraq in order to gain its 
compliance with the U.N. weapons inspection regime.\9\
---------------------------------------------------------------------------
    \7\ Security Council Resolution 660, August 2, 1990; Security 
Council Resolution 678, Nov. 29, 1990; Security Council Resolution 678, 
April 3, 1991.
    \8\ ``Authorization for Use of Military Force Against Iraq,'' 102 
House Joint Resolution 77, 102 Pub. L. 1, 105 Stat. 3. (``The President 
is authorized . . . to use United States Armed Forces pursuant to 
United Nations Security Council Resolution 678 (1990) in order to 
achieve implementation of Security Council Resolutions 660 [seq.]'').
    \9\ See Ruth Wedgwood, The Enforcement of Security Council 687: The 
Threat of Force Against Iraq's Weapons of Mass Destruction, 92 American 
Journal of International Law 724 (1998).
---------------------------------------------------------------------------
    The campaign against Iraq was authorized by Security Council 
resolution 678, and after the conclusion of Desert Storm operations, a 
cease-fire was approved by the Security Council under Resolution 687. A 
central condition of that cease-fire is that Iraq must give up its 
weapons of mass destruction and conform to the inspection requirements 
of the U.N. Special Commission on Iraq (UNSCOM), now succeeded by the 
U.N. Monitoring, Verification and Inspection Commission (UNMOVIC). 
Since that time, the United States has represented to the Security 
Council on repeated occasions that Iraq's flagrant violations of the 
inspection requirements--ranging from denials of the right to use 
necessary airfields, to harassment of inspectors, to secretion of 
important records, to the expulsion of American inspectors--amounted to 
a breach of the cease-fire conditions. In a real sense, then, the 
conflict with Iraq has been ongoing, and we have continued to operate 
under the original authorization of Resolution 678 to ``restore peace 
and security in the area'' and gain compliance with the inspection 
regime. Any alliance between Saddam Hussein and al Qaeda concerning the 
production or purchase of weapons of mass destruction would thus fall 
within the terms of the 1991 prohibitions, as well as the September 18, 
2001 Congressional resolution.
    Under the Constitution, the President continues to enjoy the power 
to take necessary action against an imminent threat, even in other 
locales. One may note that in a different age, the Philadelphia 
Convention felt it necessary to consign even to State Governors the 
power to ``engage in War'' where ``actually invaded'' or where there 
was ``such imminent Danger as will not admit of delay.'' See U.S. 
Constitution, Article I, Section 10. Effective self-defense may 
sometimes require stealth and surprise, in order to counter the 
calculations of an underground network bent on our destruction. So, 
too, any attempt by a rogue State to hand-off weapons of mass 
destruction to a terrorist group, or to use them in a method directly 
threatening to the United States and its allies, may require immediate 
action that may not ``admit of delay.'' Certainly, one may not wish to 
announce to a rogue State in advance the exact scope and scale of 
plans, lest it take action that thwarts our efforts at prevention and 
preemption. The wisdom of Congress is a resource that provides good 
value to any President, but the process of consultation is one that 
also must be adapted to the circumstances of a new kind of battlefield.

    Chairman Feingold. Thank you. I appreciate your remarks as 
well.
    We certainly are not going to delve deeply into any 
particular situation, but I just want to note two things about 
your Iraq example.
    I noticed that you referred to the authority with regard to 
any action that might be taken with regard to Iraq back to the 
1991 authorization. You did not refer to Senate Joint 
Resolution 23.
    Secondly, with regard to Iraq, I understand your point 
about the fact that certainly the goals with regard to Iraq and 
all the particulars have not necessarily been completed during 
the past 10 years. But it does seem to me that simply because 
the Congress authorized an action, that does not necessarily 
mean it is authorized forever or that there is not a question 
of the scope of what has been authorized.
    And again, I simply want to report for the record that what 
I am hearing from my constituents is a feeling that this could 
happen and that they have not been consulted and their elected 
representatives have not been consulted.
    Now, that does not mean, as you fairly pointed this out, 
that Congress should not say, ``Look, we are authorizing today, 
and you need to do it tomorrow.'' It could be, as Professor 
Frye I think was suggesting, that it would be a debate, which 
was greatly appreciated by the American people with regard to 
the Gulf War, where the general confines of what might be 
considered, what might have to be done is discussed publicly, 
so people can participate through their elected 
representatives.
    That is just a point I want to make, because I think there 
is an assumption that somehow we are going to hamstring the 
executive in terms of the very delicate things they have to do 
vis-a-vis handling a situation with Iraq. It does not have to 
be something that does that and still could perform a very 
useful function for the American people.
    Ms. Wedgwood. If I could just note, Senator----
    Chairman Feingold. Sure.
    Ms. Wedgwood [continuing]. Lest I be misread also. I take 
Senate Resolution 23 from last September and the 1991 House 
joint resolution as being belt and suspenders. Either would 
suffice, but together they are very powerful indeed.
    Chairman Feingold. Fair enough.
    All right. We will now go to Jane Stromseth, who is a 
professor of law at Georgetown University Law Center. She 
joined Georgetown University Law Center faculty in 1991, where 
she focused on constitutional law, international law, and 
international institutions.
    Professor Stromseth received her doctorate in international 
relations at Oxford, where she was a Rhodes Scholar. At Yale 
Law School, she served as an articles editor of the Yale Law 
Journal.
    After receiving her J.D. in 1987, she served as law clerk 
on the U.S. District Court for the District Columbia and to 
U.S. Supreme Court Justice Sandra Day O'Connor.
    From February 1999 to February 2000, Professor Stromseth 
served as director for multilateral and humanitarian affairs at 
the National Security Council. During 1989 to 1990, she was an 
attorney adviser in the Office of Legal Advisor at the U.S. 
Department of State.
    She has written widely on the constitutional war powers of 
Congress and the President and on various topics in 
international law.
    We welcome you. And you may proceed.

   STATEMENT OF JANE STROMSETH, PROFESSOR OF LAW, GEORGETOWN 
            UNIVERSITY LAW CENTER, WASHINGTON, D.C.

    Ms. Stromseth. Thank you very much, Mr. Chairman. I am 
grateful to be here today.
    And if I may, I would like to ask your permission to put my 
longer statement in the record.
    Chairman Feingold. Without objection.
    Ms. Stromseth. Thank you.
    Since the horrific attacks of September 11th, we have begun 
to mobilize a broad range of tools in a global war against 
terrorism. The military components of this campaign are 
diverse. They include combat operations, continuous air 
patrols, maritime interception of shipping, the training and 
equipping of foreign militaries for combat operations, and 
assistance to post-conflict peacekeeping, just to name a few.
    This campaign is likely to be long-term, far-reaching, and 
in contrast to more conventional military operations, it will 
be much harder to determine when or if the war is over or what 
constitutes victory.
    Despite these complexities, and indeed in fact because of 
them, I will argue here that the basic principles of our 
Constitution concerning war powers remain as vital and relevant 
as ever, indeed more so, in this war against terrorism.
    I will also argue that Congress' post-September 11 
authorization of force correctly recognized that both Congress 
and the President have a vital role to play in this war; that 
meaningful, high-level consultations are essential as the 
campaign unfolds; and that additional congressional 
authorization may be constitutionally required in some 
situations in the future.
    Our Constitution's division of war powers between Congress 
and the President is part of a structural system of checks and 
balances designed to protect liberty by guarding against the 
concentration of power. The division of war powers was also 
designed to draw upon the distinctive attributes of both 
Congress and the President, the legislature's deliberative 
qualities and the President's ability to act with efficiency 
and dispatch in creating an effective national government 
capable of protecting and defending the United States.
    Mr. Chairman, there is a huge scholarly literature about 
the Framers' intent and about the meaning of subsequent 
historical practice, and time does not permit me to engage in a 
comprehensive discussion here. But let me highlight four points 
from the record that in my view are essential to understanding 
the constitutional division of war powers and how they apply to 
the war on terrorism.
    First, the power to declare war vested in Congress was 
intended by the Framers to be a power to decide, to make a 
choice about whether the United States should go to war. It was 
not a formalistic power to simply validate that a previous 
state of war existed. On the contrary, the Constitution gave 
Congress the power to decide whether the United States should 
initiate war because the founders believed such a significant 
decision for the country should not be made by one person alone 
but rather by the legislature as a whole to ensure careful 
deliberation by the people's elected representatives and broad 
national support before the country engaged in such an action.
    Second, the founders clearly expected the President as 
Chief Executive and Commander in Chief to protect the United 
States by repelling attacks, or imminent attacks, against the 
United States, its vessels, its forces, and to protect American 
citizens. Moreover, they wanted effective, unified military 
command in a single set of hands.
    However, if an enemy engaged in limited acts, limited 
attacks that did not themselves bring us into a full state of 
war, the Constitution envisioned that that decision would be 
made by the Congress.
    Third, Congress' power of the purse, though critically 
important, is not a substitute for congressional authorization 
of war before it is commenced. Reliance on the power of the 
purse alone as a check on executive war powers, moreover, can 
be overly blunt and sometimes ineffective and counterproductive 
as a tool for expressing Congress' will.
    Fourth, historical practice has not fundamentally altered 
how we should understand the Constitution's allocation of war 
powers today. Of the dozen major wars in American history, five 
were formally declared by Congress and six were authorized by 
other legislative means.
    Now, there is, to be sure, a practice of limited 
presidential uses of force that falls short of major national 
conflicts. A substantial number of these, 70 out of the 
sometimes 200 cases cited by scholars, involve the protection 
or rescue of U.S. nationals, actions far short of deliberate 
war against a foreign state and reasonably falling within the 
President's authority to respond to sudden attacks.
    Other cases went beyond this. But as a general matter, one 
has to be very cautious about drawing broad conclusions about 
presidential war powers from a very disparate set of cases, 
some of which were protested by Congress. And so one has to 
look at the instances very carefully.
    And the fact remains that major wars have been authorized 
by Congress.
    Well, which side of the line, in any event, does the 
current global campaign against terrorism fall? The global war 
on terrorism in which we are now engaged aims to destroy a 
multistate terrorist network and potentially to defeat or 
overthrow sponsoring regimes. The scope and complexity of this 
global campaign against a terrorist network based in over 60 
countries goes beyond any common-sense notion of a limited 
police action.
    Congress, in authorizing the use of force after the 
September 11th attacks, recognized that the situation we faced 
implicated the war powers both of the Congress and of the 
President. And the authorization, though it has no geographical 
limits and allows for appropriate executive flexibility, is not 
a blank check.
    The joint resolution authorizes the use of necessary and 
appropriate force against those responsible for the September 
11th attacks or those who harbored those responsible. And the 
purpose of using force is focused in the future, oriented to 
prevent additional terrorist attacks against the United States 
by those responsible for the September 11th attacks.
    Mr. Chairman, let me make two final points, one about 
consultation and one about the possibility for future 
authorizations.
    In a campaign against terrorism that is likely to be long 
and far-reaching, regular and meaningful consultations between 
Congress and the President as envisioned in the War Powers 
Resolution are essential to ensure that there is a shared 
understanding between Congress and the President on future 
directions in that war and broad support for the steps ahead. A 
commitment by the President and Cabinet officials to hold 
regular consultations with the bipartisan leadership, and 
ideally with the broader group of members as well, I think 
would be invaluable.
    Moreover, given the complexity of the campaign against 
terrorism, its open-ended nature, its geographic scope, the 
enormous stakes involved, Congress, I think, should request 
that a broader range of information be provided in the regular 
war powers reports that are submitted pursuant to the War 
Powers Resolution. I think the combination of fuller reports, 
and perhaps seeking high level testimony when those reports are 
filed, that combination would, I think, spur a more significant 
and effective dialogue between Congress and the administration 
regarding future goals as this campaign unfolds.
    But, as Alton Frye and others have I think properly 
suggested, as important as consultations are, they are not a 
substitute for congressional authorization in those situations 
where the Constitution envisions and expects Congress to 
authorize the choice for war.
    As our country moves ahead in the campaign against 
terrorism, threats to our security that are not linked to 
September 11th may well present themselves. Whether and when 
additional congressional authorization is constitutionally 
required will depend on the facts of the situation and on the 
nature and magnitude of the military action contemplated.
    While the President clearly possesses the power to repel 
and forestall attacks, the decision to commence a war belongs 
to Congress. Major military action with far-reaching 
objectives, such as toppling a government, for instance, is the 
kind of action that constitutionally the founders expected 
would be debated and authorized by Congress in advance.
    And in this connection, I realize Iraq is not the focus 
here, but since it was brought up by a previous panelist, let 
me just say that absent a connection to the September 11th 
attacks, which may be established--we do not know that at this 
point--but absent that connection, I do not think that 
statutory authority currently exists to go to war against Iraq. 
The 1991 Gulf War authorization does not provide a current 
authorization to commence such a war. And I think for exactly 
the reason, Senator, you mentioned: The American people have a 
sense that these issues have to be debated contemporaneously in 
light of current circumstances, not relying simply on a 
resolution adopted over a decade ago in a different set of 
circumstances.
    The war against terrorism, unfortunately, will be with us 
for a long time. However, as our Nation moves ahead on various 
fronts, using a variety of tools and means, our response will 
be both more effective and more sustainable if the Congress and 
the President continue, as they have done so far, to work 
together in the best tradition of our great Constitution.
    Thank you.
    [The prepared statement of Ms. Stromseth follows:]

 Statement of Jane Stromseth, Professor of Law, Georgetown University 
                      Law Center, Washington, D.C.

                              Introduction

    Mr. Chairman, I am grateful for this opportunity to appear before 
the Subcommittee to discuss the important constitutional question of 
war powers in the context of the war on terrorism.
    The September 11th attacks pose unprecedented challenges for our 
Nation.
    We were attacked by a global network that was able to inflict 
massive casualties upon innocent civilians and would do so again, 
possibly with greater effect, if given the opportunity. Under such 
circumstances, we have begun to mobilize a broad range of military, 
diplomatic, intelligence, law enforcement, economic, and financial 
tools in order to wage this global war on terrorism. This campaign is 
likely to be long-term and open-ended, with conflict potentially on 
multiple fronts; and, in contrast to more conventional operations, it 
will be much harder to determine when or if the war is over or what 
constitutes victory.
    Despite these complexities, indeed, in fact because of them, I will 
argue here that the basic principles of our Constitution regarding war 
powers remain as vital and relevant as ever--indeed even more so--in 
the fight against global terrorism. I will also argue that Congress's 
post-September 11th authorization of force correctly recognized that 
both Congress and the President have a vital constitutional role to 
play in prosecuting the global war on terrorism; that meaningful high-
level consultations are essential as the campaign against terrorists 
with global reach and their State sponsors unfolds; and that additional 
congressional authorization may be constitutionally required in some 
situations in the future.

              The Constitution's Allocation of War Powers

    Our Constitution deliberately divided war powers between the 
Congress and the President. In making this choice, the framers sought 
to create an effective national government capable of protecting and 
defending the country while also remaining accountable to the American 
people. The Constitution's provisions concerning war powers--like those 
concerning other aspects of governance--reflect a structural system of 
checks and balances designed to protect liberty by guarding against the 
concentration of power. In a deliberate break with British precedent, 
the Constitution gave Congress the power to declare war because the 
founders believed such a significant decision should be made not by one 
person, but by the legislature as a whole, to ensure careful 
deliberation by the people's elected representatives and broad national 
support before the country embarked on a course so full of risks. 
Reflecting on this allocation of power, James Madison wrote: ``In no 
part of the constitution is more wisdom to be found, than in the clause 
which confides the question of war or peace to the legislature, and not 
to the executive department.''\1\
---------------------------------------------------------------------------
    \1\ Alexander Hamilton & James Madison, Letters of Pacifcus and 
Helvidius on the Proclamation of Neutrality of 1793, at 89 (James 
Madison) (Washington, D.C., J. Gideon & G.S. Gideon 1845).
---------------------------------------------------------------------------
    At the same time, the framers wanted a strong Executive who could 
``repel sudden attacks'' and act with efficiency and dispatch in 
protecting the interests of the United States in a dangerous world. By 
making the President Commander in Chief, moreover, they sought to 
ensure effective, unified command over U.S. forces and civilian 
accountability. The Constitution's division of war powers between the 
President and the Congress has led inevitably to tension between the 
branches--and to an enduring tug of war over war powers--even as the 
participation of both branches clearly is essential in protecting our 
country and advancing American interests.
    Mr. Chairman, there is a huge scholarly literature about the 
Framers' intentions with respect to constitutional war powers and about 
whether historical practices in the two centuries since the 
Constitution was ratified should alter how we should understand these 
authorities today. It is impractical for me to offer a detailed and 
comprehensive discussion here,\2\ but let me instead highlight four 
propositions from the historical record that, in my estimation, are 
central for understanding the constitutional roles of Congress and the 
President today.
---------------------------------------------------------------------------
    \2\ In a longer piece, I discuss original intent, historical 
practice, and current arguments about war powers more fully and 
systematically, and I draw on my conclusions in that piece here. See 
Jane E. Stromseth, ``Understanding Constitutional War Powers Today: Why 
Methodology Matters,'' 106 Yale L.J. 845 (1996).
---------------------------------------------------------------------------
    First, the power to ``declare war'' vested in Congress was intended 
by the Framers to be a power to decide, to make a choice, about whether 
the United States should go to war; it was not a formalistic power to 
simply validate that a legal State of war existed. On the contrary, 
Congress was given the power to determine whether the United States 
should initiate war in order to ensure that the decision to expose the 
country to such risks and sacrifices reflected the deliberation and 
judgment of the legislature--the branch most directly representative of 
the American people, whose lives and resources will be placed on the 
line--and to ensure broad national support for such a course of action. 
This interpretation is further validated by the Constitution's grant of 
authority to Congress to authorize reprisals, or acts of limited war, 
that could lead to a wider war, which clearly indicated a broader 
understanding of Congress's war-commencing role than simply a formal 
declaration that a State of war existed.
    Second, the Chief Executive's authority to repel sudden attacks by 
force is incontestable. The founders expected the President, as Chief 
Executive and Commander in Chief, to protect the United States by 
repelling actual or imminent attacks against the United States, its 
vessels, and its armed forces. Moreover, if another Nation effectively 
placed the United States in a State of war--by declaring or openly 
making war upon the United States--the President as Commander in Chief 
was expected to exercise the nation's fundamental right of self-
defense. However, if an enemy engaged in limited attacks that did not 
rise to the level of war, the founders expected the President to repel 
those attacks but not to go beyond this authority and change the State 
of the Nation from peace to war without congressional authorization.
    Third, Congress's power of purse, though critically important, is 
not a substitute for congressional authorization of war before it is 
commenced. The founders understood that the British monarch's power to 
go to war was qualified to a substantial degree by the Parliament's 
power of the purse and its control over military supplies. In giving 
Congress the power of the purse, including the power of appropriating 
money to ``raise and support Armies'' and to ``provide and maintain a 
navy,'' the Constitution continued this important legislative check. 
But the Constitution did not stop here. The Constitution also gave 
Congress the power to declare war and authorize reprisals, so that 
congressional deliberation would occur before war was commenced. 
Reliance on the power of the purse alone as a check on executive war 
powers, moreover, can be an overly blunt and sometimes ineffective tool 
for expressing the will of Congress. Limiting or cutting off funds 
after forces have already been committed is problematic because it 
undercuts both troops in the field and America's credibility with her 
allies. Restricting funds in advance is often undesirable as well 
because it can harm the President's ability to carry out effective 
diplomacy. In short, as important as Congress's power of the purse is, 
it is not a substitute for Congress's power to authorize war.
    Fourth, historical practice has not fundamentally altered how we 
should understand the Constitution's allocation of war powers today. 
Practice, of course, cannot supplant or override the clear requirements 
of the Constitution, which gives the power to declare war to Congress. 
Furthermore, of the dozen major wars in American history, five were 
formally declared by Congress and six were authorized by other 
legislative measures.\3\ There is, to be sure, a pattern of practice 
involving more limited Presidential uses of force falling short of 
major national conflicts, a substantial number of which involved the 
protection or rescue of U.S. nationals caught up in harm's way. For 
example, of the 200 or so cases sometimes cited as examples of 
unilateral commitments of force by the President, nearly 70 involved 
the protection or rescue of U.S. nationals, actions far short of 
deliberate war against foreign countries and reasonably covered by the 
President's authority to respond to sudden threats. A number of other 
operations were interventions or peace enforcement actions that aimed 
at limited goals. Others involved more far-reaching objectives, 
however, even if the risks were relatively low. In some of these cases, 
like Haiti, for instance, Congress protested unilateral actions taken 
by the President and made clear its view that its authorization should 
have been sought in advance.\4\ My basic point is this: one must be 
very cautious in drawing broad conclusions about Presidential power 
from a numerical list of cases. These instances each have to be 
examined carefully, and the authority claimed by the President and 
Congress's reaction fully assessed.\5\ Ultimately, however, whatever 
conclusions one comes to concerning the constitutional implications of 
small-scale Presidential actions undertaken without congressional 
authorization, the fact remains that major wars have been authorized by 
Congress.
---------------------------------------------------------------------------
    \3\ The five declare wars are the War of 1812; the Mexican-American 
War of 1848; the Spanish-American War of 1898; World War I; and World 
War II. The wars authorized by other legislative measures include the 
Naval War with France (1798-1800); the First Barbary war (1801-1805); 
the Second Barbary War (1815); the Civil War; the Vietnam War; and the 
Persian Gulf War. The Korean War stands alone as the only major war not 
expressly authorized by Congress in advance.
    \4\ Both Houses of Congress adopted identical resolutions declaring 
that the President ``should have sought'' congressional approval before 
sending U.S. troops to Haiti and urging ``prompt and orderly 
withdrawal.'' S.J. Res. 229, 103d Cong., 1st Sess. (1994). The vote was 
91 to 8 in the Senate, and 258 to 167 in the House.
    \5\ For discussion of historical practice, see Francis D. Wormuth & 
Edwin B. Firmage, To Chain the Dog of War (2d ed. 1989); Louis Fisher, 
Presidential War Power (1995); and Jules Lobel, ``Little Wars'' and the 
Constitution, 50 U. Miami L. Rev. 61 (1995).
---------------------------------------------------------------------------
    Where exactly does a global war on terrorism fall on the spectrum 
between major war and smaller scale military actions? If it were purely 
a police action against hostile non-state actors, akin to operations 
against pirates or to other small-scale operations with limited 
objectives, a case can be made that historical practice indicates a 
record of Presidential deployments without advance congressional 
authorization. The President, after all, clearly possesses authority to 
repel and to forestall terrorist attacks against the United States, its 
forces, and citizens.
    Yet, this global campaign is much more ambitious than apprehending 
terrorists. It aims to destroy a multi-state terrorist infrastructure 
and potentially defeat or overthrow sponsoring regimes. While military 
force is not the only, or even indeed the main, instrument for waging 
this war, the range of military activities that we have mounted to date 
is very diverse--combat operations, continuous air patrols, maritime 
interception of shipping, the training and equipping of foreign 
militaries for combat operations, operational assistance to post-
conflict stability operations, just to name a few. Given that the 
current campaign is focused against a global terrorist network that is 
based in over sixty countries, that has the capacity to inflict massive 
casualties, and that requires or depends upon the sponsorship or 
acquiescence of various countries for its training and safe-harbors, 
the scope and complexities of this military campaign would appear to 
defy any commonsense notion of a limited police action.
 Congress's Post-September 11 Authorization of Force: Scope and Limits
    Congress's authorization for the use of force against those 
responsible for the attacks of September 11 is an express recognition 
that Congress and the President both have a critical constitutional 
role to play in the war on terrorism. Mindful of the centrality of 
congressional war powers in a campaign against terrorism that will be 
long-term and far-reaching, Congress sought to craft an authorization 
that both allowed for appropriate executive flexibility but at the same 
time is not a blank check.
    Though not restricted geographically, Congress's post-September 11 
authorization does contain some clear limits. The Joint Resolution 
authorizes the President:

        ``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.''

    The joint resolution, in essence, authorizes (a) necessary and 
appropriate force, against those states, organizations, or persons who 
(b) planned, authorized, committed, or aided the September 11th 
attacks, or (c) harbored such organizations or persons, (d) in order to 
prevent future acts of international terrorism against the United 
States by such nations, organizations or persons. Thus, the force must 
be directed against those responsible in some way for the September 
11th attacks, or those who harbored such organizations or persons; and 
the purpose of using force is focused and future-oriented: to prevent 
additional terrorist acts against the United States by the states, 
organizations, or persons responsible for the September 11th attacks or 
who harbored those responsible. The President determines whether the 
necessary link to the September 11th attacks is established, and 
presumably Congress expected he would make his determination and the 
basis for it known to Congress in some fashion, perhaps through a war 
powers report or through briefings, e.g., to the intelligence 
committees. Moreover, in signing the Joint Resolution, President Bush 
made clear that he would consult closely with Congress as the United 
States responds to terrorism.
    Congress' post-September 11th resolution was an unambiguous 
decision to authorize force. Like the Gulf War authorization in 1991, 
the authorization explicitly affirms that it ``is intended to 
constitute specific statutory authorization within the meaning of 
section 5(b) of the War Powers Resolution.'' This removes any actions 
that fall within the scope of the authorization from the War Powers 
Resolution's 60-day time-clock provision. At the same time, Congress 
made clear that the requirements of the War Powers Resolution otherwise 
remain applicable.
        The War Powers Resolution and the War Against Terrorism
    For all the controversy it has spurred, key elements of the War 
Powers Resolution are constitutionally compelling and warrant broad 
support. First, its overriding purpose is to ``insure that the 
collective judgment of both the Congress and the President'' applies to 
the introduction of U.S. forces into hostilities and to the continued 
use of those forces. Second, it seeks to enable Congress to better 
fulfill its constitutional responsibilities by requiring the President 
``in every possible instance'' to ``consult with Congress before 
introducing'' U.S. armed forces into hostilities or imminent 
hostilities and to continue to ``consult regularly'' with the Congress 
while U.S. forces are in those situations. Moreover, the legislative 
history of the War Powers Resolution makes clear that Congress expected 
consultations to be meaningful:

          ``Rejected was the notion that consultation should be 
        synonymous with merely being informed. Rather, consultation in 
        this provision means that a decision is pending on a problem 
        and that Members of Congress are being asked by the President 
        for their advice and opinions, and in appropriate 
        circumstances, their approval of action contemplated. 
        Furthermore, for consultation to be meaningful, the President 
        himself must participate and all information relevant to the 
        situation must be made available.'' (H.Rep. 93-287 (1993), p. 
        2351).

    Third, under the War Powers Resolution, the President is required 
to report to Congress within 48 hours in designated situations,\6\ and 
to make periodic reports to Congress at least once every 6 months if 
U.S. forces remain in hostilities or imminent hostilities.
---------------------------------------------------------------------------
    \6\ These include when U.S. forces are introduced into hostilities 
or imminent hostilities, ``into the territory, airspace or waters of a 
foreign nation, while equipped for combat,'' or ``in numbers which 
substantially enlarge'' existing deployments of combat-equipped forces 
in foreign nations.
---------------------------------------------------------------------------
    Whatever conclusions one reaches about the more controversial 
provisions of the War Powers Resolution, such as the 60-day time 
clock,\7\ the consultation provisions are sound and reasonable efforts 
to ensure that both the President and the Congress fulfill their 
constitutional responsibilities concerning the commitment of U.S. 
forces abroad. Moreover, even when Congress has authorized the use of 
force, as it did after September 11, regular, meaningful consultations 
between Congress and the President remain vital in the ongoing war on 
terrorism. Such consultations are imperative to ensure that there is a 
frank exchange of views and a shared understanding between Congress and 
the President on future directions in the war on terrorism and broad 
support for the steps ahead. To give a counter-example: The experience 
in Somalia is a cautionary reminder that congressional authorization 
and support in the early phases of an operation does not replace the 
need for continued dialog about the goals and risks of a changing 
mission. We cannot afford to make the same mistakes in the current 
context.
---------------------------------------------------------------------------
    \7\ The controversial portions of the War Powers Resolution include 
section 2c, which I think does too narrowly state the President's 
constitutional war powers, but does not affect the operation of the 
rest of the resolution, and the 60-day time clock provisions, including 
the concurrent resolution provision (section 5(b)). At the same time, 
however, the War Powers Resolution explicitly states that it is not 
intended ``to alter the constitutional authority of the Congress or of 
the President,'' 8(d)(1), and it also contains a severability clause, 
which provides that if any provision or application of the resolution 
is held invalid, the remainder of the resolution shall not be affected. 
(Section 9).
---------------------------------------------------------------------------
                             Consultations

    How should a system of regular, meaningful consultations between 
Congress and the Administration be structured as the country faces up 
to what will likely be a long, complex campaign against terrorism? 
Clearly, a commitment by the President to hold regular consultations 
with the bipartisan congressional leadership would be invaluable. 
Second, as the War Powers Resolution expressly provides in section 
4(b), Congress should request that a broader range of information be 
included in the periodic war powers reports provided by the 
Administration. Those reports, which have generally been perfunctory 
since the War Powers Resolution was first enacted, should, in the 
context of the war on terrorism, include a fuller discussion of the 
objectives and effectiveness of U.S. action, including our efforts to 
work closely with allies on multiple fronts. Congress may also wish to 
request that the reports be made more frequently, say every 3 months, 
and, in any event, invite Cabinet officials to testify on the State of 
the war on terrorism when those reports are submitted. The combination 
of fuller reports and high-level testimony could, in conjunction with 
meaningful consultations, make for a more significant and effective 
dialog between Congress and the Administration regarding future goals 
and strategies in the war on terrorism.

                          Future Authorization

    As important as consultations are, however, they are not a 
substitute for congressional authorization if military action is 
contemplated that clearly implicates Congress's war powers. While the 
post-September 11 authorization is broad, it does contain limits, most 
notably the requirement of a clear link to the attacks of September 11. 
Other threats to U.S. security unrelated to those attacks may exist or 
arise in the future, and various military options may be considered, 
including options that go beyond measures to prevent future acts of 
terrorism by those responsible for the September 11th attacks. Whether 
and when additional congressional authorization is constitutionally 
required will depend on the facts of the situation and on the nature 
and objectives of the military action contemplated.
    Constitutionally, the President clearly possesses the power to 
repel attacks and to forestall imminent attacks against the United 
States and its armed forces, and to protect Americans in imminent 
danger abroad. But the decision to go beyond this and commence a war 
belongs to Congress. Major military action with far-reaching objectives 
such as regime change is precisely the kind of action that 
constitutionally should be debated and authorized by Congress in 
advance. The Constitution's ``wisdom'' on this point is compelling: 
Authorization, if provided by Congress, ensures that the risks and 
implications of any such action have been fully considered and that a 
national consensus to proceed exists. Congressional authorization also 
ensures American combat forces that the country is behind them, and 
conveys America's resolve and unity to allies as well as adversaries.
    The war against terrorism will, unfortunately, be with us for a 
long time. However, as our Nation moves ahead on various fronts, using 
a variety of tools and means, our response will be more effective and 
more sustainable if the Congress and the President continue to work 
together in the best tradition of our great Constitution.

    Chairman Feingold. Thank you very much, Professor.
    I just want to mention two items here, in light of your 
testimony.
    One is, I was pleased to have you sort of join the point 
that Dean Kmiec had raised, which I had not heard before, the 
idea that declaring war is merely to in effect have Congress 
ratify something that is already happened. I would submit--and 
I certainly know that he has a dean of law, so I am careful to 
do this--but that if the Framers had intended that to be the 
case, they could have used words like ``ratify'' or ``endorse'' 
or ``acknowledge.'' To me, ``declare'' has always been a strong 
word suggesting a proactive role for Congress.
    But that is an interesting point that I had not thought 
about before. And as we get into the questions, you can respond 
to that.
    Secondly, some of the testimony seems to merge or maybe 
even confuse consultations over broad scope of policy 
directions versus consultation over tactical decisions, which 
is a dangerous thing. Because none of us, at least nobody that 
I work with here in the Senate, really believes that we should 
be consulted about every tactical decision. That is a scary 
thought, in terms of our armed forces.
    And the trouble is, though, as the discussion proceeds, if 
the goal for consultation is portrayed as trying to get into 
all that, it makes people turn off on the whole idea of 
legitimate consultation. And that is something we have to 
avoid.
    The War Powers Resolution talks about scope of operations 
and not about delving into the President's tactical decision-
making. And I want it very clear on the record that that is, at 
least from my interest in this, what we are talking about here, 
not an attempt to undercut the very difficult responsibilities 
that our Executive has in conducting this war and this battle.
    Thank you, Professor.
    The final witness is Professor Michael Glennon, who is 
currently scholar in residence at the Woodrow Wilson Center. He 
is also a professor of law at the University of California-
Davis Law School. He is an expert in international 
constitutional law.
    He has held staff positions with the Senate Legislative 
Council's office and with the Senate Foreign Relations 
Committee.
    And he has also written very widely on these war power 
issues.
    Thank you for joining us.

        STATEMENT OF MICHAEL GLENNON, PROFESSOR OF LAW 
 AND SCHOLAR IN RESIDENCE, WOODROW WILSON INTERNATIONAL CENTER 
                 FOR SCHOLARS, WASHINGTON, D.C.

    Mr. Glennon. Thank you, Mr. Chairman.
    Let me begin by congratulating you on putting this hearing 
together on this critically important subject.
    You have asked us to address two questions: First, when 
will additional authorization be necessary in prosecuting the 
war against terrorism? Second, how can consultation and 
reporting practices be made more meaningful?
    As I outlined in my prepared statement, the starting point 
in answering your first question is to determine what 
authorization is already in place. In principle, authorization 
of use of force could come from any one of three possible 
sources: a treaty, a statute, or the Constitution.
    There is no treaty that is currently in effect that confers 
authority on the President to use force. Indeed, the United 
States has never been a party to such a treaty. And any treat 
that purported to do that probably would be unconstitutional.
    As to statutes, the War Powers Resolution requires that any 
authorization to use force be explicit. There are only two 
statutes currently in force that meet the War Powers 
Resolution's explicitness requirements.
    One of those statutes is the Gulf War Resolution of 1991. 
In theory, this could confer authority on the President to 
attack Iraq. I understand that the subcommittee does not wish 
to explore that complicated question today, so I will not get 
into that.
    The second statute that meets the War Powers Resolution's 
explicitness requirement is of course S.J. Res. 23. That is the 
statute passed by Congress, again, on September 14. S.J. Res. 
23 would provide continuing authority to use force against 
entities that were involved in the September 11th attacks on 
the Pentagon and the World Trade Center.
    But S.J. Res. 23 would provide no authority for use of 
force against an entity not involved in the September 11th 
attacks.
    And I would refer the subcommittee in this connection to 
the straightforward and clear statement of my friend John Yoo, 
which appears, Mr. Chairman, on page 516 of the article that 
you entered in the record at the outset of this hearing from 
the Harvard Journal of International Law and Policy, in which 
John says the following, ``The joint resolution's authorization 
to use force is limited only to those individuals, groups or 
states that planned, authorized, committed or aided the attacks 
and those nations that harbored them. It does not, therefore, 
reach other terrorist individuals, groups or states that cannot 
be determined to have links to the September 11th attacks.''
    Now, I must say I am somewhat perplexed at my friend Ruth 
Wedgwood's suggestion that either would suffice, either of 
these two resolutions would suffice, to provide authority for 
attacking Iraq. S.J. Res. 23 would not provide authority for 
attacking Iraq unless it were established that Iraq was 
involved in the September 11th attacks.
    Let me turn, Mr. Chairman, to the Constitution. When the 
Constitution permits the President to use force without 
congressional approval is one of the most contentious and 
vexing issues in American constitutional jurisprudence. In my 
view, the best short answer to that question was given in the 
Senate version of the War Powers Resolution, language that was 
dropped in conference.
    It said that the President may act alone in using armed 
force in the following circumstances: ``to repel an armed 
attack upon the United States, its territories or possessions; 
to take necessary and appropriate retaliatory actions in the 
event of such an attack; and to forestall the direct and 
imminent threat of such an attack.''
    The Senate version of the War Powers Resolution also 
recognized the President's power to act alone in repelling 
attacks on the United States armed forces and in protecting 
threatened U.S. nationals who are located abroad.
    In all other situations, the Senate believed in 1973 that 
prior congressional approval is constitutionally required.
    Now, contrast the Senate's 1973 formula with the formula 
set out in the hastily drafted whereas clause, the fifth 
whereas clause, of S.J. Res. 23.
    And I want to underscore something. A whereas clause is not 
part of the legally operative language of the statute. It can 
have no binding effect. It is import is purely prefatory.
    The 1973 formula that the Senate adopted flows directly 
from the sources of constitutional power that Jane Stromseth 
just identified, the Constitution's text, the Framers' intent, 
the case law, subsequent custom and practice, and functional 
and structural considerations. Those sources suggest the 
rejection of the British model in which war-making power 
resided exclusively in the king. They explain the adoption of a 
new American model in which the war power was shared between 
the executive and legislative branches.
    Now, how could consultation and reporting be made more 
meaningful? Let me begin, Mr. Chairman, by suggesting how I 
think Congress should not attempt to make consultation and 
reporting more meaningful.
    Congress needs to resist the urge to substitute 
consultation for authorization. Authorization and consultation 
are not interchangeable. Consultation can entail only 
listening. When constitutional lines are crossed, more than 
listening is required. The Constitution requires compliance. 
And compliance requires authorization.
    Second, I know that many in Congress believe that the 
information provided by the executive in the war against 
terrorism has been inadequate. But I hope that Congress will 
also resist the recurring temptation to set up some 
superconsultative committee to try to remedy these 
deficiencies. The risk is too great that such a committee would 
be co-opted by the executive branch.
    The truth is, when the Congress really needs certain 
information, it can almost always get it. One of the most 
important documents to get are those describing the legal 
justification for given actions, ``What is the specific legal 
rationale?'' which Congress in many cases does not even 
request.
    Finally, in the next stage of the war on terrorism, I hope 
that the President will sidestep this tired debate about 
constitutional theology and ask for congressional approval 
simply as a matter of sound public policy.
    No one can be certain, Mr. Chairman, what is next in this 
war. But the last thing this Nation needs is a heated 
constitutional debate on the eve of an international conflict.
    Weak Presidents need incessantly to underscore their 
constitutional prerogatives; strong Presidents do not. If the 
President acts pragmatically, as Alton Frye has suggested, I 
hope that Congress will meet him halfway. This means resisting 
the effort to establish a precedent that its approval was 
constitutionally required.
    The words of President Kennedy carry as much wisdom for 
interbranch relations as they do for international harmony. 
``Civility,'' he said, ``is not a sign of weakness. And 
sincerity is always subject to proof.''
    Thank you.
    [The prepared statement of Mr. Glennon follows:]

     Statement of Michael Glennon, Professor of Law and Scholar in 
     Residence, Woodrow Wilson International Center for Scholars, 
                            Washington, D.C.

    Thank you for inviting me to testify today.
    You have asked us to address two questions that may arise in 
connection with use of force in the ongoing war against terrorism. 
First, at what point will further authorization or consultation be 
required? Second, how can consultation and reporting be made more 
meaningful?
    Contrary to what seems to be growing sentiment in Congress, 
authorization and consultation are not interchangeable. Where 
authorization is required, consultation cannot substitute for it. And 
even when authorization is in effect, consultation may nonetheless be 
lawfully required. Let me turn first, therefore, to the question of 
authorization. At what point, as the war on terrorism proceeds, will 
the President require additional authorization from Congress?

                      A. Sources of Authorization

    To identify the point at which further authorization to use force 
will be needed, it is first necessary to determine what authorization 
exists and how far it extends. Authorization to use force in 
prosecuting the war could derive, in principle, from three possible 
sources: a treaty, a statute, or the Constitution.

                       1. authorization by treaty

    The first possible source, a treaty, is most easily dismissed. No 
treaty currently in force gives the President authority to use force. 
Indeed, the United States has never been a party to any treaty that 
purported to give the President authority to use force. The 
constitutionality of any such treaty would be doubtful in that it would 
necessarily divest the House of Representatives of its share of the 
congressional war-declaring power. (For this reason, all of the United 
States' mutual security treaties have made clear that they do not 
affect the domestic allocation of power.) Moreover, war-making 
authority conferred by any such treaty would be cutoff unless it met 
the requirements of section 8(a)(2) of the War Powers Resolution. 
Section 8(a)(2) requires, in effect, that any treaty authorizing the 
use of force meet two conditions. The first condition is that any such 
treaty must ``be implemented by legislation specifically authorizing'' 
the introduction of the armed forces into hostilities or likely 
hostilities. This condition is not met because no treaty is so 
implemented. The second condition is that any such implementing 
legislation must State that it is ``intended to constitute specific 
statutory authorization'' within the meaning of the War Powers 
Resolution. Again, since no implementing legislation is in effect, the 
second condition is also not met. Thus it must be concluded that, if 
further authority to use force is required, the President cannot seek 
that authority from any treaty.
    The principle that no treaty can provide authority to use force in 
the war against terrorism is important because, prior to use of force 
by the United States in the Gulf War, it was contended that the United 
Nations Charter, as implemented by the U.N. Security Council, provided 
such authority. The argument was that the Security Council resolution 
authorizing force against Iraq (Resolution 678 of November 29, 1990) 
somehow substituted, in United States domestic law, for approval by the 
U.S. Congress (which was given later, in P.L. 102-1, on January 14, 
1991). The argument was without merit and has been overwhelmingly 
rejected by legal scholars. Among other things, it is doubtful that the 
Charter gives the Security Council the power to order member states to 
use force, and doubtful, too, whether this power, assigned by the 
Constitution to the Congress and the President, can be delegated to an 
international organization. In any event, the first Bush Administration 
never claimed such authority from the Security Council's action. 
Indeed, Secretary of State James Baker made clear at the time that the 
Security Council had merely authorized use of force against Iraq, not 
required it. But it is conceivable that the argument could re-emerge as 
the war on terrorism unfolds; if it does, Congress should give it short 
shrift.

                      2. authorization by statute

    The second source to which the President might turn for authority 
to use force is statutory law. I reviewed a moment ago the provision of 
the War Powers Resolution that limits authority to use force that can 
be inferred from a treaty. A companion provision limits such authority 
that can be inferred from a statute. That provision is section 8(a)(1). 
Section 8(a)(1) sets out two similar conditions that must be met before 
authority to use armed force can be inferred from a given statute. The 
first condition is that such a statute must ``specifically authorize'' 
the introduction of the armed forces into hostilities or likely 
hostilities. The second condition is that such a statute must State 
``that it is intended to constitute specific statutory authorization 
within the meaning of '' the War Powers Resolution. Unless each 
condition is met, a given statute may not be relied upon as a source of 
authority to use armed force. Arguments challenging the validity of 
this provision are essentially frivolous (Archibald Cox announced 
himself ``aghast'' at the contention); I thus relegate a brief response 
to an appendix at the end of this testimony (appendix A).
    Two statutes now in effect meet these two conditions. The first is 
the statute enacted by Congress authorizing use of force during the 
Gulf War, which I alluded to a moment ago (P.L. 102-1, Jan. 14, 1991). 
Whether this statute continues to provide authority to use force 
against Iraq is a complicated question, which I understand the 
Subcommittee does not wish to explore today.
    The second statute that meets these conditions is the law enacted 
by Congress and signed by the President on September 18, 2001, P.L. 
107-40. The statute--also known as Senate Joint Resolution 23--is well 
known to this Subcommittee; for convenience, I append a copy to my 
statement (see appendix B) and will refer to it as S.J. Res. 23.
    How much authority does this statute confer upon the President to 
use force in prosecuting the war against terrorism? Note at the outset 
that the statute contains five whereas clauses. Under traditional 
principles of statutory construction, these provisions have no binding 
legal effect. Only material that comes after the so-called ``resolving 
clause''--``Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled ''--can have any 
operative effect. Material set out in a whereas clause is purely 
precatory. It may be relevant for the purpose of clarifying ambiguities 
in a statute's legally operative terms, but in and of itself such a 
provision can confer no legal right or obligation.
    To determine the breadth of authority conferred upon the President 
by this statute, therefore, it is necessary to examine the legally 
operative provisions, which are set forth in section 2(a) thereof. That 
section provides as follows:

          In General.--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.

    The central conclusion that emerges from these words--which 
represent the only substantive provision of this statute--is that all 
authority that the statute confers is tightly linked to the events of 
September 11. The statute confers no authority unrelated to those 
events. The statute authorizes the President to act only against 
entities that planned, authorized, committed, or aided the terrorist 
attacks that occurred on September 11, 2001. No authority is provided 
to act against entities that were not involved in those attacks. The 
closing reference limits rather than expands the authority granted, by 
specifying the purpose for which that authority must be exercised--``to 
prevent any future acts of international terrorism against the United 
States. . . . '' No authority is conferred to act for any other 
purpose, or to act against ``nations, organizations or persons'' 
generally. Action is permitted only against ``such'' nations, 
organizations or persons, to wit, those involved in the September 11 
attacks.
    The statute thus cannot serve as a source of authority to use force 
in prosecuting the war on terrorism against entities other than those 
involved in the September 11 attacks. To justify use of force under 
this statute, some nexus must be established between the entity against 
which action is taken and the September 11 attacks. A recent article 
co-authored by Deputy Assistant Attorney General John C. Yoo accurately 
emphasized the narrowness of the authority conferred by S.J. Res. 23. 
Professor Yoo wrote as follows:

          The Joint Resolution's authorization to use force is limited 
        only to those individuals, groups, or states that planned, 
        authorized, committed, or aided the attacks, and those nations 
        that harbored them. It does not, therefore, reach other 
        terrorist individuals, groups, or states that cannot be 
        determined to have links to the September 11 attacks.\1\
---------------------------------------------------------------------------
    \1\ Robert C. Delahunty & John C. Yoo, The President's 
Constitutional Authority to Conduct Military Operations Against 
Terroist Nations and the Nations That Harbor or Support Them, 
Harv.J.Law & Pub. Pol. 488, 516 (Spring, 2002).

    The requirement of a nexus between the September 11 attacks and the 
target of any force is reinforced by the statute's legislative history. 
Unfortunately, because of the truncated procedure by which the statute 
was enacted, no official legislative history can be compiled that might 
detail what changes were made in the statute, and why. It has been 
reported unofficially, however, that the Administration initially 
sought the enactment of legislation which would have set out broad 
authority to act against targets not linked to the September 11 
attacks. The statute proposed by the Administration reportedly would 
have provided independent authority for the President to ``deter and 
pre-empt any future acts of terrorism or aggression against the United 
States.'' \2\ Members of Congress from both parties, however, 
reportedly objected to this provision.\3\ The provision was therefore 
dropped from the operative part of the statute and added as a final 
whereas clause, where it remained upon enactment.
---------------------------------------------------------------------------
    \2\ Helen Dewar & Juliet Eilperin, Emergency Funding Deal Reached; 
Hill Leaders Agree to Work Out Language on Use of Force, Wash. Post, 
Sept. 14, 2001 at A30.
    \3\ Helen Dewar & John Lancaster, Congress Clears Use of Force, Aid 
Package; $40 Billion--Double Bush's Request--Earmarked for Rebuilding 
Terror Response, Wash. Post, Sept. 16, 2001 at A11.
---------------------------------------------------------------------------
    Accordingly, unless future use of force is directed at an entity 
that participated in the events of September 11, authority for such use 
must derive from a source other than S.J. Res. 23. Again, setting aside 
the only other remaining potential statutory source of authority--the 
Gulf War authorization (P.L. 102-1, Jan. 14, 1991)--only one possible 
source remains: the United States Constitution. If use of force by the 
President is authorized by the Constitution, no authority is needed 
from any treaty or statute.

                    3. constitutional authorization

    A starting point in considering the ever-controversial question of 
the scope of the President's independent constitutional powers is to 
note a proposition on which commentators from all points on the 
spectrum have agreed: that the President was possessed of independent 
constitutional power to use force in response to the September 11 
attacks upon the United States. As was widely observed at the time, the 
War Powers Resolution itself supports this conclusion. Its statement of 
congressional opinion concerning the breadth of independent 
Presidential power under the Constitution (section 2(c)(3)) recognizes 
the President's power to use force without statutory authorization in 
the event of ``a national emergency created by attack upon the United 
States, its territories or possessions, or its armed forces.'' Thus, 
U.S. military operations in Afghanistan could have been carried out 
under the President's constitutional authority, even if S.J. Res. 23 
had never been enacted. This conclusion has important implications for 
the specific subject of this Subcommittee's interest--at what point a 
need further authorization might arise. If future use of force is 
necessary in or against other countries that, like Afghanistan, are 
linked to the September 11 attacks, S.J. Res. 23 will continue to 
suffice, along with the President's constitutional authority, to 
provide all necessary authorization.
    A more difficult question arises in connection with a need to use 
force in the future against states or groups not connected with the 
September 11 attacks. This question presents squarely one of the most 
vexing problems in U.S. constitutional jurisprudence--the scope of the 
President's power to use armed force without prior congressional 
approval.
    In the last 30 years, Congress has on two occasions expressed its 
opinion on the issue. One statement of opinion, as I mentioned, is set 
forth in section 2(c)(3) of the War Powers Resolution. I've also 
alluded to the other statement: the final whereas clause in S.J. Res. 
23. That whereas clause expresses the opinion of Congress that ``the 
President has authority under the Constitution to take action to deter 
and prevent acts of international terrorism against the United 
States.'' Obviously, these two statements are inconsistent. The scope 
of Presidential power to wage war that was recognized by Congress in 
the War Powers Resolution is much narrower than that recognized in S.J. 
Res. 23. If the President only has power to act alone in ``a national 
emergency created by attack upon the United States, its territories or 
possessions, or its armed forces,'' then he obviously is without power 
to ``to take action to deter and prevent acts of international 
terrorism against the United States'' where no attack upon the United 
States has occurred. Which statement is correct?
    In my view, neither. The statement in the War Powers Resolution is 
overly narrow, and the statement in S.J. Res. 23 is overly broad. The 
original, Senate-passed version of the War Powers Resolution contained 
wording--dropped in conference--that came close to capturing accurately 
the scope of the President's independent constitutional power. It 
provided--in legally binding, not precatory, terms--that the President 
may use force ``to repel an armed attack upon the United States, its 
territories or possessions; to take necessary and appropriate 
retaliatory actions in the event of such an attack; and to forestall 
the direct and imminent threat of such an attack.'' This formula--
unlike the hastily crafted words of the S.J. Res. 23 whereas clause--
was drafted over a period of years, with numerous hearings and advice 
from the top constitutional scholars in the country. It was supported 
by Senators Fulbright, Symington, Mansfield, Church, Cooper, Eagleton, 
Muskie, Stennis, Aiken, Javits, Case, Percy, Hatfield, Mathias, and 
Scott--not an inconsequential group. The Senate language was dropped in 
conference only because the House conferees insisted upon their version 
of the Resolution; they would have scuttled the whole effort had their 
version not been accepted. As a participant (counsel to the Senate 
conferees) in that 1973 conference committee, I can only say that I 
thought then--as I have on numerous occasions since--that the country 
would have been far better off if the Senate version of the Resolution 
had been adopted.
    To be sure, not everyone regards the formula from the Senate 
version of the Resolution as a complete description of bedrock 
constitutional principle. Yet that formula is the statement that most 
fully reflects the capacity of the U.S. Senate for studied, serious, 
and sustained inquiry into the question that brings this Subcommittee 
here today. And I believe that that statement (together with the rest 
of the section in which it was included, which recognizes additional 
authority to use force in repelling attacks on the armed forces and 
also in protecting threatened nationals located abroad) approximates 
most closely the dispassionate conclusion that would still be drawn 
today by members of both parties if they had the chance to study the 
issue as it was studied so painstakingly by their predecessors that I 
mentioned. Further efforts have been undertaken at refining that 
formula, most notably by Senator Joseph Biden's Subcommittee on War 
Powers, which held important hearings in 1988. His proposed ``Use of 
Force Act'' (S. 2387, 105th Cong., 1st Sess.) flowed from those 
hearings. But the fundamental premise is unchanged.
    That premise can be simply stated: that the war power is shared 
between Congress and the President.
    This is the premise that animates all efforts by Members of 
Congress who seek to have the Executive meet authorization and 
consultation requirements. This is the premise that is, for all 
practical intents and purposes, rejected by proponents of sole 
executive power.
    The premise flows from each source of constitutional power:
     The constitutional text. Textual grants of war power to 
the President are paltry in relation to grants of that power to the 
Congress. The President is denominated ``commander-in-chief.'' In 
contrast, Congress is given power to ``declare war,'' to lay and 
collect taxes ``to provide for a common defense,'' to ``raise and 
support armies,'' to ``provide and maintain a navy,'' to ``make rules 
for the regulation for the land and naval forces,'' to ``provide for 
calling forth the militia to execute the laws of the Union, suppress 
insurrections and repel invasions,'' to ``provide for organizing, 
arming, and disciplining, the militia,'' and to ``make all laws 
necessary and proper for carrying into execution . . . all . . . powers 
vested by this Constitution in the Government of the United States.'' 
Congress is also given exclusive power over the purse: ``No money,'' 
the Constitution provides, ``shall be drawn from the Treasury but in 
consequence of appropriations made by law.''
     The case law. Support for the Executive derives primarily 
from unrelated dicta pulled acontextually from inapposite cases. The 
actual record is striking: Congress has never lost a war powers dispute 
with the President before the Supreme Court. While the cases are few, 
in every instance where the issue of decisionmaking primacy has 
arisen--from Little v. Barreme (1804) to the Steel Seizure Case 
(1952)--the Court has sided with Congress.
     Custom. It is commonly asserted that Presidents have used 
armed force abroad over 200 times throughout U.S. history. It is true 
that practice can affect the Constitution's meaning and allocation of 
power. The President's power to recognize foreign governments, for 
example, like the Senate's power to condition its consent to treaties, 
derives largely from unquestioned practice tracing to the earliest days 
of the republic. But not all practice is of constitutional moment. A 
practice of constitutional dimension must be regarded by both political 
branches as a juridical norm; the incidents comprising the practice 
must be accepted, or at least acquiesced in, by the other branch. In 
many of the precedents cited, Congress objected. Furthermore, the 
precedents must be on point. Here, many are not: nearly all involved 
fights with pirates, clashes with cattle rustlers, trivial naval 
engagements and other minor uses of force not directed at significant 
adversaries, or risking substantial casualties or large-scale 
hostilities over a prolonged duration. In a number of the 
``precedents,'' in fact, Congress actually approved of the executive's 
action (as was true, for example, in the case of the war against the 
Barbary pirates, which I will discuss in a moment).
     Structure and function. If any useful principle derives 
from structural and functional considerations (and this is doubtful), 
it is that the Constitution gives the Executive primacy in emergency 
war powers crises, where Congress has no time to act, and that in non-
emergency situations--circumstances where deliberative legislative 
functions have time to play out--congressional approval is required.
     Intent of the Framers. Individual quotations can be, and 
regularly are, drawn out of context and assumed to represent a 
factitious collective intent. It is difficult to read the primary 
sources, however, without drawing the same conclusion drawn by Abraham 
Lincoln. He said:

          ``The provision of the Constitution giving the war-making 
        power to Congress, was dictated, as I understand it, by the 
        following reasons. Kings had always been involving and 
        impoverishing their people in wars, pretending generally, if 
        not always, that the good of the people was the object. This 
        our convention understood to be the most oppressive of all 
        kingly oppressions; and they resolved to so frame the 
        Constitution that no one man should hold the power of bringing 
        this oppression upon us.''

    Chief Justice William Rehnquist (quoting Justice Robert Jackson) 
shared Lincoln's belief that the Framers' rejected the English model. 
He said:

          ``The example of such unlimited executive power that must 
        have most impressed the forefathers was the prerogative 
        exercised by George III, and the description of its evils in 
        the Declaration of Independence leads me to doubt that they 
        were creating their new Executive in his image.''

    Notwithstanding the plain import of these sources of constitutional 
power, some argue that the only role for Congress occurs after the 
fact--in cutting off funds if the president commences a war that 
Congress does not support. Two problems inhere in this theory. First, 
it reads the declaration-of-war clause out of the Constitution as a 
separate and independent check on Presidential power. The Framers 
intended to give Congress control over waging war before the decision 
to go to war is made. Giving Congress a role only after the fact, 
however, would make its power to declare war nothing but a mere 
congressional trumpet to herald a decision made elsewhere. Whatever 
else the Framers may have done to enhance the President's power, surely 
they did not play the neat trick of giving Congress a war power that is 
really no power at all.
    Second, the theory flies in the face of the Framers' manifest 
intention to make it more difficult to get into war than out of it. 
This approach would do the opposite. If the only congressional option 
is to wait for the president to begin a war that Congress does not wish 
the Nation to fight, and then cutoff funds, war can be instituted 
routinely with no congressional approval--and seldom if ever ended 
quickly. The practical method of cutting off funds is to attach a rider 
to the Department of Defense authorization or appropriation 
legislation. This means, necessarily, passing the legislation by a two-
thirds vote so as to overcome the inevitable Presidential veto. The 
alternative is for Congress to withhold funding altogether--and be 
blamed by the president for closing down not merely the Pentagon but 
perhaps the entire Federal Government. The short of it is, therefore, 
that to view the congressional appropriations power as the only 
constitutional check on Presidential war power is, for all practical 
purposes, to eliminate the declaration-of-war clause as a 
constitutional restraint on the president. Proponents of this 
perspective may believe that Presidents Wilson and Roosevelt could have 
fought World War I and World War II without prior congressional 
approval, but this curious interpretation would have been received with 
astonishment in Philadelphia in 1787.
    For reasons such as these, the Office of Legal Counsel of the 
Justice Department concluded in 1980 that the core provision of the War 
Powers Resolution--the 60-day time limit--is constitutional. It said:

          ``We believe that Congress may, as a general constitutional 
        matter, place a 60-day limit on the use of our armed forces as 
        required by the provisions of [section 5(b)] of the Resolution. 
        The Resolution gives the President the flexibility to extend 
        that deadline for up to 30 days in cases of ``unavoidable 
        military necessity.'' This flexibility is, we believe, 
        sufficient under any scenarios we can hypothesize to preserve 
        his function as Commander-in-Chief. The practical effect of the 
        60-day limit is to shift the burden to the President to 
        convince the Congress of the continuing need for the use of our 
        armed forces abroad. We cannot say that placing that burden on 
        the President unconstitutionally intrudes upon his executive 
        powers.
          Finally, Congress can regulate the President's exercise of 
        his inherent powers by imposing limits by statute.'' \4\
---------------------------------------------------------------------------
    \4\ Presidential Power to Use the Armed Forces Abroad Without 
Statutory Authorization, 4A Op. Office of the Legal Counsel, Dep't of 
Justice 185, 196 (1980).

    The occasional suggestion is made that, in the war on terrorism, 
the United States is confronting a new phenomenon--the ``privatization 
of war''--and that traditional constitutional principles must therefore 
give way if this war is to be prosecuted effectively. It surely is true 
that al Qaeda represents an entity with fewer governmental links than 
most of the adversaries encountered by the United States in recent 
years. But it is not correct that non-state actors are a new phenomenon 
in the annals of warfare. Many of the belligerents involved in the 
earliest conflicts fought by the United States were non-state actors. 
The Barbary pirates are a classic example. These (quite literally) 
Barbarians were the al Qaeda of the Federalist era--sea-going 
terrorists who ravaged Mediterranean shipping and exacted millions of 
dollars in bribes from faint-hearted states. It is worth recalling 
Jefferson's response. As Secretary of State, he advised that ``it rests 
with Congress to decide between war, tribute, and ransom. . . .'' 
Later, as President, Jefferson told Congress that as President he was 
``unauthorized by the Constitution, without sanction of Congress, to go 
beyond the line of defense.'' ``Measures of offense,'' he said, must be 
authorized by Congress. Hamilton disagreed that congressional approval 
was required inasmuch as ``Tripoli had declared war in form'' against 
the United States; this, in his view, would have permitted Jefferson to 
act alone. But if the United States had not been attacked, Hamilton 
believed, Jefferson would have needed legislative authorization. ``[I]t 
is the peculiar and exclusive province of Congress,'' Hamilton wrote, 
``when the Nation is at peace to change that State into a State of war 
. . . ``[I]t belongs to Congress only to go to war . . .'' Congress 
proceeded to enact ten statutes authorizing Presidents Jefferson and 
Madison to prosecute the Barbary Wars.
    The question before the Subcommittee today is whether, in the war 
against terrorism, Congress will allow the Presidency to be re-created 
in the image of George III. The incentive to do so is not a consequence 
of iniquity or treachery within the executive branch. The incentive is 
atmospheric--it is in the air, a natural impulse that springs from 
sudden terror and uncertain safety, from the urge simply to protect and 
to be protected. If Congress's answer is no--if Congress refuses to 
permit the arrogation of legislative war power by the Executive--then 
the only alternative will be to demand adherence to a rigorous 
authorization requirement.
    Where should the line be drawn? I commend to the Subcommittee, once 
again, the thoughtful formula devised by the Senate itself three 
decades ago: the President may act alone in using force ``to repel an 
armed attack upon the United States, its territories or possessions; to 
take necessary and appropriate retaliatory actions in the event of such 
an attack; and to forestall the direct and imminent threat of such an 
attack.'' In all other situations, the President should proceed only if 
Congress has given its prior approval.

                     B. Consultation and Reporting

    I reiterate my opening comment: where authorization is required, 
consultation will not suffice. Consultation necessarily entails only 
listening. Constitutionally, listening is not enough. When 
constitutional lines are crossed, compliance is required.
    The War Powers Resolution requires that the President consult with 
Congress ``in every possible instance'' before using force. It also 
requires that, even after Congress has authorized use of force, he 
``report to the Congress periodically on the status of such 
hostilities,'' and ``in no event . . . less often than once every 6 
months.'' Many Members of Congress apparently have concluded, however, 
that these requirements have not been met. Inevitably, these 
dissatisfactions lead to pressures to establish a ``super'' joint 
consultative committee of congressional leaders which, surely, will 
do--must do--a better job at getting information than existing 
committees and individual members.
    There is no question that congressional access to information must 
be complete and continuous. To approach a crisis with full perspective, 
a decisionmaker, in Congress or the executive branch, must be knee-deep 
in relevant information and analysis prior to the outbreak of the 
crisis. Agencies that deal with national-security crises normally 
engage in much ``contingency planning,'' where options are drawn up in 
advance for the various scenarios likely to arise. These plans, as well 
as real-time data on events as they unfold, should be fully available 
to relevant congressional committees. It is to the advantage of the 
Executive as well as Congress that full information be provided: the 
smaller the gap in knowledge between the two branches, the smaller the 
policy differences are likely to be. Reasonable policymakers often 
reach differing views only because their informational universes are 
different.
    Nevertheless, I hope that Congress will resist pressures to 
establish some joint ``super'' committee. Such a committee, in my view, 
would be too easily co-opted by the Executive. It would likely be 
dominated with get-along, go-along Members who are too inclined to ask 
easy questions and accept evasive answers, not with naysayers and young 
Turks who are willing to make waves that rock boats in the Pentagon, 
CIA and State Department. Its members would soon develop a cozy 
relationship with new-found friends in the executive branch, who surely 
would target them for favors and special treatment. Their special 
status would create special problems. Would they represent their absent 
colleagues' views when their own are in conflict? If the public were 
misled, would they be willing to share confidential information with 
their colleagues, let alone with the public? If the Executive took 
action at odds with their advice, would their privileged position be 
jeopardized by speaking out? If they remained silent, would their 
assent be assumed to policies they might otherwise have questioned? 
Would photo ops at the White House substitute for hard-headed scrutiny 
of Administration policy proposals? Decentralized power is a source of 
congressional strength, not weakness.
    Lord Bryce reminded us that ``the student of institutions as well 
as the lawyer is apt to overrate the effect of mechanical contrivances 
in politics.'' The War Powers Resolution is one ``mechanical 
contrivance'' that was surely overrated thirty years ago. Congress 
ought not make the same mistake again by adopting some new contrivance 
that promises to resolve perceived consultation or reporting 
inadequacies. I believe that the solution to inadequate information is 
not more detailed or more numerous consultation or reporting 
requirements, but greater congressional self-reliance. Consulting with 
executive officials and reading their reports are two of only many ways 
of getting information. Ninety-five percent of the information to be 
had from classified briefings is available in the Washington Post. If 
Congress really wants the rest, it normally can get it.
    How? One way to develop needed information is through forceful and 
insistent staff work. During the evacuation of South Vietnam following 
the collapse of the Thieu government, the onsite investigations of two 
members of the professional staff of the Senate Foreign Relations 
Committee, Richard Moose and Charles Meissner, proved invaluable in 
assessing executive testimony concerning the number of refugees 
expected and American capabilities for their removal. Committee staff 
must be able, with the committee's support, to travel instantly to 
trouble spots, sometimes under unsafe conditions. They must be 
skeptics, doubters, unbelievers--persons of independent judgment who 
are willing to say no, able to acknowledge uncertainty, and able to 
resist pressures for consensus. They must be individuals of strong 
institutional pride, whose goal is not to pave the way for a job in the 
executive branch but to serve the Senate or House of Representatives 
with dedication and integrity. As the war against terrorism expands, 
the need for such staff will grow.
    Amazingly, some of the most important information Congress can get 
is not transmitted by the Executive for the simple reason that Congress 
has never asked. I refer in particular to the legal justification for 
various actions or policies. Nothing is more important in assessing a 
given policy than the legal rationale supporting it. Often these 
justifications are prepared in great detail--but remain unreviewed by 
Congress merely because Congress has never seriously requested them. I 
refer, for example, to the Clinton Administration's use of force in 
Kosovo. Legal scholars in the United States and abroad eagerly awaited 
an explanation of the legal basis--in constitutional as well as 
international law--for military operations against Yugoslavia. Even 
during litigation on the issue (in Campbell v. Clinton (1999)), the 
Administration never produced a supporting legal rationale. Much the 
same can be said of military operations undertaken against Iraq in 
1998. Similarly, the question whether detainees at Guantanamo are 
entitled to POW status has generated enormous attention in scholarly 
communities and beyond--but no legal analysis of the issue has been 
released. I was advised informally by one administration official that 
the reason was simply that no congressional request had been made for 
the document--which had been prepared with painstaking care, and which 
could have answered persuasively many of the critics. If Congress is 
serious about authorizing what the Constitution requires to be 
authorized, it must begin by regularly and diligently insisting that 
the Executive transmit a legal justification for its actions--not 
simply a conclusory assertion that the action is justified by the 
``President's powers as commander in chief '' or the President's 
general ``foreign policy'' powers, as is commonly done in reports under 
the War Powers Resolution, but a specific and detailed legal analysis 
of why and how the action is authorized.

                   C. Conclusion and Recommendations

    More important than more information is what Congress does in 
response to the information it already has; often that information is 
more than sufficient for carrying out its constitutional 
responsibilities. In this regard, it is useful to turn briefly to the 
recent past, and then to the future.
    The Nation's involvement in the tragedy of Vietnam traced in part 
to the cursory consideration given by Congress to the legislation that 
authorized that involvement, the infamous Gulf of Tonkin Resolution. 
The Resolution was adopted hastily, with no committee hearings, no 
mark-up, no conference committee, and little floor debate. In a post-
mortem conducted 4 years later, the Senate Foreign Relations 
Committee--whose Chairman, J. William Fulbright, had served as the 
Senate floor manager--issued a report that made recommendations to 
future Congresses as to how the recurrence of such a mistake might be 
avoided. The report, entitled ``National Commitments,'' No. 91-129, 
91st Cong., 1st Sess. (April 16, 1969), is a tribute to congressional 
prescience. In it the Committee recommended that, in considering future 
legislation involving the use or possible use of force, Congress----

          (1) debate the proposed resolution at sufficient length to 
        establish a legislative record showing the intent of Congress;
          (2) use the words authorize or empower or such other language 
        as will leave no doubt that Congress alone has the right to 
        authorize the initiation of war and that, in granting the 
        President authority to use the Armed Forces, Congress is 
        granting him power that he would not otherwise have;
          (3) State in the resolution as explicitly as possible under 
        the circumstances the kind of military action that is being 
        authorized and the place and purpose of its use; and
          (4) put a time limit on the resolution, thereby assuring 
        Congress the opportunity to review its decision and extend or 
        terminate the President's authority to use military force.

    Recommendation (2) was inapplicable to the consideration of S.J. 
Res. 23 since, as discussed above, the President had power to respond 
to the sudden attack on the United States without any authorization 
from Congress. I also pointed out earlier that S.J.Res 23 is closely 
linked to the events of September 11. Note, however, that not one of 
the three remaining recommendations was followed by Congress in 
enacting S.J. Res. 23. Debate on the measure was perfunctory at best; 
some Members seemed to consider debate a dispensable inconvenience. No 
committee hearings were held, no mark-ups were conducted, and floor 
debate was hurried. No legislative record of any substance was 
established that will clarify Congress's intent in the event it may be 
called into question--concerning, for example, use of force against 
``persons'' who happen to be located within the United States; would 
the law authorize the use of military tribunals to try such persons? 
(The President's order establishing the tribunals cites S.J. Res. 23 as 
supporting authority.) S.J. Res. 23 is anything but explicit about 
``the kind of military action that is being authorized and the place 
and purpose of its use.'' Nor are any time limits imposed. If Congress 
at some point in the future becomes dissatisfied with the purpose or 
manner in which force is used under the statute, it will have to muster 
a two-thirds vote to repeal the law over the President's veto--which is 
one of the reasons that it took years for Congress finally to end 
American involvement in the Vietnam War. Many commentators have 
lamented the gradual loss in Congress of an institutional memory; if 
the legislative branch is to exercise its share of the war power 
responsibly in the future, it must avail itself of the lessons of the 
past far more ably than it did following the crisis of September 11th.
    The executive branch might also benefit from approaches used 
successfully in the past. The Subcommittee can perhaps do little to 
control how the Executive attends to its perceived constitutional 
responsibilities. One thing Congress can do, however, is to meet the 
executive branch half way if the President does what many hope he will 
do: to get beyond the tired debate over constitutional theology and 
approach use-of-force issues pragmatically--focusing not upon dogmatic 
insistence upon constitutional prerogatives, but upon the practical 
consequences of his action.
    Let me spell out what pragmatism would counsel in a concrete 
situation--the decision to use force against Iraq. No doubt the White 
House is already awash in reams of memoranda importuning the President 
to claim every variety of legal justification for avoiding Congress in 
the decision to attack Iraq. Some such claims might not be implausible; 
as I noted earlier, the legal questions are complex. But no useful 
purpose would be served by getting into a heated constitutional debate 
with Congress on the eve of a major international conflict. Policy-
makers in the executive and legislative branches should be immersed in 
the intricate military, diplomatic, and political aspects of the 
issue--not in the diverting legal and constitutional issues that we 
have been discussing here today.
    There is a simple way for the President to lead Congress toward 
this more productive relationship--that is, by announcing that he seeks 
congressional approval for policy, rather than for legal, reasons. Such 
an approach would entail an initial Presidential request for 
authorization with no necessary acknowledgment that it is 
constitutionally required; indeed, the President would be free to 
maintain that he can act alone (as the first President Bush did during 
the Gulf War) just as Congress, in giving that approval, would be free 
to maintain that he cannot act alone (as Congress did during the Gulf 
War). All the President need say is that he would welcome congressional 
support. If polls are to be believed, he will get it overwhelmingly. 
Congress, in turn, ought thus resist any temptation to establish that 
its approval was constitutionally required.
    If neither branch seeks a favorable constitutional precedent, one 
winner will emerge: the Nation. The resulting policy would benefit 
enormously from the legitimacy conferred by inter-branch cooperation. 
Domestic support would be solidified. Overseas, adversaries as well as 
allies would see the United States as united. This could be crucial if 
the action led to a more extensive conflict than anticipated. Kosovo 
was a ``little war''--but would have been a much bigger war if the 
British had honored Gen. Wesley Clark's order to confront the Russian 
contingent approaching Pristina. Little wars can pose big risks. When 
possible, big risks should be shared.
    President Dwight Eisenhower knew this. Eisenhower repeatedly saw 
the wisdom in seeking congressional approval before using force. 
Eisenhower was often urged to use his sole constitutional power to come 
to the aid of the French in Vietnam. He refused. ``There is going to be 
no involvement of America in war,'' he said, ``unless it is a result of 
the constitutional process that is placed upon Congress to declare 
it.'' When China took aggressive action against offshore islands in 
1955, Eisenhower was again pressured to react, relying upon his 
independent commander-in-chief powers. Again he refused and instead 
sought congressional approval, observing that ``[i]t would make clear 
the unified and serious intentions of our Government, our Congress, and 
our people.'' In 1957, when violence threatened the Middle East and 
American military involvement seemed advisable, Eisenhower again sought 
advance congressional approval to use force. ``I deem it necessary to 
seek the cooperation of the Congress,'' he said. ``Only with that 
cooperation can we give the reassurance needed to deter aggression.'' 
Eisenhower promised ``hour-by-hour'' contact with Congress if military 
action became necessary.
    Weak presidents need incessantly to underscore their ``delicate, 
plenary, and exclusive'' constitutional prerogatives. Strong presidents 
do not. I hope that, as the war on terrorism expands, this President 
will act from perceived strength, not weakness. If he does, I hope that 
Congress will respond in the spirit of President Kennedy, whose words 
apply equally to inter-branch harmony as to international 
understanding: ``Civility,'' he said, ``is not a sign of weakness, and 
sincerity is always subject to proof.''
    I would be happy to answer any questions.
                                 ______
                                 
                               APPENDIX A

   Constitutionality of Section 8(a)(1) of the War Powers Resolution
    Section 8(a) of the War Powers Resolution provides as follows:
    Sec. 8. (a) Authority to introduce United States Armed Forces into 
hostilities or into situations wherein involvement in hostilities is 
clearly indicated by the circumstances shall not be inferred--
          (1) from any provision of law (whether or not in effect 
        before the date of the enactment of this joint resolution), 
        including any provision contained in any appropriation Act, 
        unless such provision specifically authorizes the introduction 
        of United States Armed Forces into hostilities or into such 
        situations and stating that it is intended to constitute 
        specific statutory authorization within the meaning of this 
        joint resolution; or
          (2) from any treaty heretofore or hereafter ratified unless 
        such treaty is implemented by legislation specifically 
        authorizing the introduction of United States Armed Forces into 
        hostilities or into such situations and stating that it is 
        intended to constitute specific statutory authorization within 
        the meaning of this joint resolution.
    Section 8(a)(1) was adopted virtually verbatim from paragraph (4) 
of section 3 of the Senate-passed version of the Resolution, S. 440, 
93rd Cong., 1st Sess. (1973). (The House bill contained no comparable 
provision.) Its meaning and purpose were explained in the report of the 
Senate Foreign Relations Committee on the bill. The Committee said as 
follows:

          The purpose of this clause is to counteract the opinion in 
        the Orlando v. Laird decision of the Second Circuit Court 
        holding that passage of defense appropriation bills, and 
        extension of the Selective Service Act, could be construed as 
        implied Congressional authorization for the Vietnam war.

    S. Rep. 93-220 at 25 (1973). In Orlando, the court had rejected the 
argument that authorization to use force in Vietnam could not properly 
be inferred from ``military appropriations or other war-implementing 
legislation that does not contain an express and explicit authorization 
for the making of war by the President.'' 443 F.2d at 1043.
    The case for the constitutionality of section 8(a)(1) is simply 
put. A law enacted by Congress is presumed to be constitutional. The 
burden of persuasion falls upon one who challenges a statute's 
constitutionality. The argument challenging the constitutionality of 
section 8(a)(1) (which may also extend to section 8(a)(2), concerning 
treaties) seems to be a two-pronged contention, roughly as follows:
    1. One Congress cannot bind a later Congress; legislative acts must 
be alterable when the legislature chooses to alter them. One 
legislature is competent to repeal any law which a former legislature 
was competent to pass. New legislators cannot be bound by policies of 
earlier days. New legislators have a right to repeal by inference 
preexisting laws; the latest expression of the legislative will must 
prevail. Therefore, Congress remains free to authorize use of force 
implicitly, the words of section 8(a)(1) notwithstanding.
    2. Use of force may be authorized constitutionally by 
appropriations statutes and other laws implicitly or indirectly 
facilitating that use. Therefore, section 8(a)(1) would take from 
Congress a constitutionally permissible method of authorizing war.
    Each argument is easily answered. Although their premises are of 
course correct, their conclusions simply do not follow.
    The first argument mistakes the premises that it posits with a very 
different implicit premise--that section 8(a)(1) is somehow 
``unrepealable.'' Obviously it is not. Any time Congress wishes to 
repeal section 8(a)(1) it can do so. It can do so, moreover, using 
precisely the same procedure applicable to the repeal of any other 
statute. The Congress that enacted section 8(a)(1) thus did not in this 
sense ``bind'' later Congresses, for later Congresses retain full 
discretion to alter that section if and when they choose to alter it. 
Any Congress wishing to authorize use of force implicitly can easily do 
so: it can either repeal section 8(a)(1) at the same time it enacts 
such implicit authorization, or it can simply provide by law that 
section 8(a)(1) does not apply to the legislation in question.
    What this first challenge to section 8(a)(1) neglects to note is 
that the so-called ``last-in-time doctrine''s not mandated or created 
by the Constitution. The doctrine is simply a canon of construction-- 
judicially invented guideline for ``finding''he will of Congress where 
that will is in doubt, i.e., in the event two statutes conflict. The 
courts simply assume, quite reasonably, that Congress probably intended 
the latter. But that assumption is always rebuttable. If the evidence 
is clear that Congress intended the former, the first in time will 
prevail, the object being, again, simply to give effect to the will of 
Congress. Like other canons of construction, the last-in-time doctrine 
therefore can be countermanded by Congress, which may intend that its 
intent be gleaned using a different canon of construction. 
(Legislatures regularly adopt their own canons of construction. State 
criminal codes, for example, typically subject all provisions to a 
canon that requires that their provisions be construed narrowly.) 
Section 8(a)(1) simply sets forth a canon of construction. That canon 
provides that, in specified circumstances, the intent of Congress 
should be gleaned not through application of the last-in-time doctrine, 
but through application of a first-in-time principle. There is no 
constitutional reason why the last-in-time must control if Congress 
indicates otherwise in a legislatively prescribed non-supersession 
canon, nor is there any reason why Congress must leave its intent to be 
guessed at by the Executive or the courts.
    The second argument proceeds from a similar presupposition of 
unalterability with respect to section 8(a)(1). But that presupposition 
is unfounded. Congress has not disabled itself from exercising its 
right to authorize hostilities through the enactment of appropriations 
legislation if it wishes to do so. Indeed, section 8(a)(1) places 
appropriations laws on a footing no different from general legislation. 
Either method may be used if Congress chooses to do so. Each, however, 
is subject to the canon of construction set out in section 8(a)(1). If 
Congress wishes to use appropriations legislation to authorize use of 
force, no impediment precludes it from doing that. The effect of 
section 8(a)(1) is simply to make clear the congressional intent that 
such authorization not be inferred unless Congress clearly intended to 
grant it. There is nothing novel in such a canon, which has, indeed, 
been used by Congress in other contexts in the realm of foreign 
relations. See, e.g., Sec. 15 of the Act of Aug. 1, 1956, as amended, 
Pub. L. No. 84-885, 70 Stat. 890 (codified at 22 U.S.C. 
Sec. 2680(a)(1)(b)), which prohibits appropriations not authorized by 
law to be made to the Department of State and precludes nonspecific 
supersession of that prohibition.
    If these two objections were correct, Congress, in enacting the War 
Powers Resolution, wrote empty words: whatever the constitutional 
validity of the 60-day time limit, that requirement will virtually 
never apply because Congress will almost always be deemed to have 
enacted some implicit authorization contemplated by the Resolution. The 
objections proceed on the assumption that a disclaimer of authority 
cannot simply be stated once, but must be reiterated in every single 
piece of legislation from which authority might conceivably be 
inferred. Yet Congress, in enacting legislation, is deemed to be on 
notice as to what laws already exist; its intent is considered to 
embrace all acts in pari materia. Section 8(a)(1) is in effect a 
statement by Congress that it wants the non-supersession canon to apply 
to every piece of authorizing and appropriating legislation insofar as 
that legislation might be read as approving the introduction of the 
armed forces into hostilities.
    Practice shows that section 8(a)(1) has placed no burden on either 
Congress or the Executive. Congress has authorized use of force three 
times since enactment of section 8(a)(1) in 1973--in the Lebanon War 
Powers Resolution, the Gulf War Resolution, and S.J. Res. 23. Each of 
those laws complied with section 8(a)(1) by meeting the two conditions 
it sets out. In none of those instances did the President challenge the 
constitutionality of section 8(a)(1). No reasonable argument can be 
made that Congress was put to an unreasonable effort by including in 
those authorizations the wording contemplated by section 8(a)(1).
    To the contrary, section 8(a)(1) has had precisely the effect 
Congress intended in precluding executive officials from claiming 
congressional approval in instances where there was none. President 
Clinton would surely have preferred to be able to make a plausible 
claim of congressional support for military operations undertaken in 
Haiti and Kosovo, but the reality is that opinion within Congress was 
divided and Congress never approved those actions. Similarly, military 
operations in Grenada, Panama, Somalia, and elsewhere were not given 
prior approval by Congress--and that conclusion was indisputable 
because of section 8(a)(1).
    Section 8(a)(1) serves a critically important purpose. It ensures 
that the decision whether to authorize armed force--the most 
significant decision Congress can make--will not be misinterpreted. 
Action that momentous calls for decisional clarity. That is all that 
section 8(a)(1) requires. Its enactment represented a triumph of 
congressional responsibility, and its validity ought not be doubted.
                                 ______
                                 
                         APPENDIX B--J. RES. 23
             Public Law 107-40, 107th CONGRESS, 1st Session

                            JOINT RESOLUTION

    To authorize the use of United States Armed Forces against those 
responsible for the recent attacks launched against the United States.
    Whereas, on September 11, 2001, acts of treacherous violence were 
committed against the United States and its citizens; and Whereas, such 
acts render it both necessary and appropriate that the United States 
exercise its rights to self-defense and to protect United States 
citizens both at home and abroad; and Whereas, in light of the threat 
to the national security and foreign policy of the United States posed 
by these grave acts of violence; and Whereas, such acts continue to 
pose an unusual and extraordinary threat to the national security and 
foreign policy of the United States; and Whereas, the President has 
authority under the Constitution to take action to deter and prevent 
acts of international terrorism against the United States: Now, 
therefore, be it Resolved by the Senate and House of Representatives of 
the United States of America in Congress assembled,
    SECTION 1. SHORT TITLE.
    This joint resolution may be cited as the ``Authorization for Use 
of Military Force''.
    SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
    (a) In General--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.
    (b) War Powers Resolution Requirements--
    (1) Specific Statutory Authorization--Consistent with section 
8(a)(1) of the War Powers Resolution, the Congress declares that this 
section is intended to constitute specific statutory authorization 
within the meaning of section 5(b) of the War Powers Resolution.
    (2) Applicability of Other Requirements--Nothing in this resolution 
supercedes any requirement of the War Powers Resolution.

    Chairman Feingold. Thank you. I appreciate your testimony 
as well.
    In fact, I do want to note that the original proposal of 
the administration for the resolution was much broader, and I 
think dangerously broader, and that although I am sure it was 
not an easy conversation, that in fact there was an 
accommodation reached between the Congress and the President to 
come up with language that was more, I think, appropriately 
tailored to the situation. And I do think your comments about 
meeting halfway are well-taken.
    Let me make a couple of comments and as a way to introduce 
questions for all of you to answer, but beginning with Mr. Yoo.
    In January 1991, the former President Bush was threatening 
to launch a military operation against Iraq without seeking 
congressional authorization. At that time, Senator Biden 
chaired a hearing before the Judiciary Committee--if anybody is 
wondering if this is an appropriate place to do this, this is 
the way it was done in the past--in which several prominent 
legal scholars questioned the authority of the President to 
authorize the use of force in Iraq without congressional 
approval.
    And based in part on those hearings, former President Bush, 
as we have indicated, sought and ultimately received 
congressional authorization for Operation Desert Storm.
    And as has been indicated by a number of the excellent 
witnesses we have had today, many of us see that as an 
important victory for the Constitution and for our 
constitutional structure.
    Today, as I noted in my opening statement, the current 
President has demonstrated similar respect for the Constitution 
by requesting and obtaining constitutional authority to respond 
to the attacks of September 11th.
    But I do take it from your testimony, Mr. Yoo, and others, 
that the administration believes that the congressional 
authorization was not necessary. And while I agree that the 
President enjoyed a constitutional window of opportunity to 
respond to the attacks, absent any congressional authorization, 
eventually time limits and the requirement for congressional 
authorization under the War Powers Resolution I think would 
have kicked in.
    So I guess what I would like to ask you in that context is, 
why, as a practical matter, would any administration ever seek 
a congressional authorization for committing military troops 
abroad, if there is no military necessity to do so?
     And then, if it makes practical rather than legal sense, 
especially given Congress' power of the purse, would not that 
suggest that our constitutional structure has in effect a 
built-in preference for preauthorization, except for in clear 
emergencies when such authorization would not be possible?
    Your comments? And then I welcome anybody here to respond.
    Mr. Yoo. So your first question, Senator, is why does any 
President seek congressional authorization at all, given the 
theory of executive war powers we have outlined today? And then 
the second is, does the Constitution actually have a structural 
bias in favor of congressional preauthorization?
    Chairman Feingold. Or wouldn't it make sense to seek it 
from a practical point of view? And that is suggesting that 
there may well be a constitutional preference or intention that 
there be preauthorization in most cases.
    Mr. Yoo. I think you are quite right that the 
administration's position has been that the congressional 
authorization was not necessary, but it was welcome. And I 
think it goes to the administration's preference, as a 
practical matter, as a political matter, as a matter of 
prudence and good policy, to seek cooperation with the 
legislature in matters involving the use of armed forces 
abroad.
    That said, the administration does not consider the 
negotiations that led to the drafting of that authorization and 
the signature of it to cede any of the executive branch's 
constitutional authorities.
    As to your second question in terms of Congress' power of 
the purse, I would like to emphasize that Congress does have 
the power of the purse, and that is Congress' primary and 
perhaps most important power over the course of military 
operations going forward.
    However, I agree as a matter of practical good sense, we do 
seek Congress' cooperation to make sure that all appropriations 
will be forthcoming for military operations. And that does 
involve consultation, which this administration, I think the 
record shows, has engaged in with Congress. I think there have 
been over 10 consultations between the President and the 
executive branch and Congress. And this administration fully 
intends to make sure that that continues wherever possible.
    Chairman Feingold. Thank you, Mr. Yoo.
    Mr. Fisher.
    Mr. Fisher. The words here are interesting. When President 
Bush in January 1991 came to Congress, he actually did not ask 
for authority; he asked for support. And Congress did the right 
thing by using the word ``authorize.'' But even when it came to 
President Bush and he signed into law, he said, ``I did not ask 
for authority. I asked for support.'' Well, of course what 
counts is what is in the public law. So the word ``authorize'' 
is very important.
    The second one, when we talk here today that it would be 
wise or prudent or pragmatic for a President to get statutory 
authority from Congress, to me the reason it is wise and 
prudent and pragmatic is the constitutional reason for it. It 
is not just good policy or it will make the constituents feel a 
little bit better. There is a constitutional framework that 
calls for that.
    Thank you.
    Chairman Feingold. Dean Kmiec.
    Mr. Kmiec. Well, thank you, Dean Feingold.
    [Laughter.]
    Senator I did want to respond briefly to the earlier point 
and then this one as well.
    You mentioned that you thought Congress was careful in its 
words or that the convention was careful in its words as it 
drafted the declare war clause.
    I think it was very careful. And as we know from the 
debates in the constitutional convention, they changed the word 
from ``make'' to ``declare'' because they were anticipating 
from their own experience that others could put us in a state 
of war, and I believe as well anticipating that the President 
would need to place us in a state of anticipatory self-defense, 
if you want to call it that, to use Daniel Webster's words, as 
well, and that, therefore, the more appropriate word 
``declare'' was to declare in light of these facts, in light of 
these conditions.
    And they had other choices. They knew very well that state 
constitutions--for example, they were very familiar with the 
South Carolina constitution, which explicitly said to the South 
Carolina Governor that he could not engage in war without prior 
authorization. And they could have chosen the words, ``The 
President shall be Commander in Chief when we authorize him to 
be Commander in Chief.'' And of course in other places, in 
explicitly denying state authority to engage in warfare, they 
knew how to use the words in the negative.
    So one thing I would say is that the convention debate at 
least says to me, and the words that they chose, that they were 
deliberately not including an explicit requirement of 
preauthorization.
    But I do think Professor Wedgwood is right. One of the last 
things the world needs and the Congress needs and the President 
needs at this point is an extended constitutional debate that 
amounts to a kind of ``he says, she says'' mounting up of the 
opposing sides of the academic literature, because we have a 
much more practical problem in front of us, and that is the one 
that you recognized initially. And that is the nature of this 
warfare that we are fighting.
    And so the real question is: Does this Congress believe 
that the President has the authority to engage in anticipatory 
self-defense, to in fact undertake both the military and 
related law enforcement measures to counteract the terrorist 
threats that we face without being locked into a reporting 
mechanism--which I believe, by the way, is already satisfied by 
the joint resolution that you passed in terms of S.J. 23--but 
without being locked into that?
    I think that is the question that needs to be asked and 
answered by the President and the Congress as a whole.
    And there is your question about a consultative mechanism. 
And I think it really is a consultative mechanism, because to 
insist upon the academic literature, that one side of the 
debate means one thing and, therefore, authorization must occur 
within a given time frame, is to open up our people and our 
Nation to a far graver threat on the basis of an academic 
argument.
    Chairman Feingold. Well, let me just quickly respond, and 
then we will go to the next response.
    First, this is a rare opportunity to return to law school 
without being graded.
    [Laughter.]
    And let me suggest that, certainly, when the Framers chose 
to take the word ``make'' out of the Constitution for the 
declaration of war power, I mean, the word ``make war'' sounds 
like Congress is going to conduct war. I would suggest that for 
you to then suggest that the word ``declaration'' has such a 
narrow meaning does not give the word ``declare'' sort of the 
middle meaning that I think the Framers probably intended. It 
is that Congress was not simply responding to a fact that was 
already accomplished but was making a decision about whether to 
have a war waged presumably principally by the executive.
    So I think I agree with your notion that the word ``make'' 
was rejected for a reason.
    The other point I want to make is that I do not think we 
can minimize the importance of this constitutional structure 
for our being successful in this war against terrorism. I heard 
Professor Wedgwood talking about al Qaeda and how unique it is. 
I will give you that. I do not know how completely unique it 
is, though, when it is compared to the fanaticism of the Nazi 
regime or the kamikazes of Japan. I am not sure that this is 
completely different and that our Framers did not anticipate 
extremely difficult challenges, even the kind of very unique 
challenging that we are facing now.
    And again, I return to this, although it is perhaps not a 
legal argument: I cannot tell you how important it is that the 
American people feel engaged in this. It is from our 
neighborhoods that the men and women are being asked to go and 
fight in these very difficult situations. If the President 
technically has the ability to act entirely on his own in this 
area and to not have the American people feel that they are 
engaged in this through their elected representatives, so be 
it. But I suggest that apart from it being a sort of a 
constitutional game or discussion, it is just the opposite. It 
is an attempt to maintain a national unity through our system.
    Do you want to respond to that?
    Mr. Kmiec. Just one quick thought.
    And I think you have that mechanism, as I said in my 
opening statement. And the mechanism that I think the Framers 
anticipated for you is the appropriations process. And this you 
can go back into history and find, in fact, our most venerable 
President, President Washington, engaging in exactly that 
discussion. He fought what he termed an actual war against the 
Indian tribes and the Indian nations. And he, quite frankly, 
was brought before appropriations committees or the equivalent 
to justify the expansion of the number of troops and the level 
of force that he was seeking to apply at a given time rather 
than seeking alternative courses. I think that is the 
constitutionally envisioned structure.
    What is more problematic or difficult is how that gets 
accomplished in terms of the appropriation structure in light 
of the necessary secrecy and in light of the necessary dispatch 
or swiftness that we have to counteract threats that are 
opposed to us.
    Chairman Feingold. This is the kind of exchange I hope we 
have. But I can tell you I have been watching that 
appropriations process for 10 years. It is not a good place for 
this kind of discussion.
    [Laughter.]
    In fact, the debate always comes down to one thing, ``Are 
you going to vote to take away the money and the arms and the 
support for our men and women over there?'' I mean, the fact is 
that that is not a great place. It is a very important power. 
But I see that as a second stage role for Congress.
    And to simply rely on that, it is in practice very 
difficult. Although Senator Byrd would argue and I think agree 
with you that it is the preeminent power in this regard.
    Mr. Frye.
    Mr. Frye. Senator, I want to agree with one important point 
just made.
    Clearly, this conversation should not get bogged down 
unduly in the cluttered landscape of the literature. It is a 
constitutional issue with a rich literature, and there is some 
wisdom there that we need to refer to. But it would be 
shortsighted of us all if that is all we dealt with.
    To my good friend and colleague Ruth Wedgwood's invocation 
of Alexander Hamilton, a lot of us would be invoking Jefferson 
and Adams and Abraham Lincoln with very powerful contrary views 
on key points.
    So those are important reference points, but not to me the 
primary hinge on which this conversation should be based.
    I would submit that you do have to look to the large, broad 
purpose of the Constitution. The precedents are important. But 
you can begin with the largest and broadest purposes of the 
Constitution, which by contrast with Professor Corwin's famous 
assertion that it was an invitation to struggle for the control 
of American foreign policy, I argue it was an inducement to 
collaboration, a structure designed to compel both branches to 
take account of their political stake in finding common ground.
    In the current situation, while appropriations leverage is 
important, it is a factor, it does not seem to me nearly 
sufficient. And our experience shows that it has not been 
effective, because of the self-deterring aspects of the 
prospect of cutting off funds for forces in the field and other 
considerations. It has just not worked.
    And so it seems to me that we do need to look for 
mechanisms that constantly put the pressure on Congress to 
refresh its policy judgments, just as the President commanding 
forces in the field will have to take account of changing 
circumstances.
    Wars sometimes go wrong. You have to do things differently. 
Sometimes you have to engage in a strategic retreat or a 
reorientation. The President is certainly the authority to make 
those kinds of decisions.
    But similarly, if the executive has to retain the degree of 
flexibility to update its opinion, its judgment, Congress needs 
periodic mechanisms to continue expressing its policy verdict 
without putting the impossible burden on itself of taking the 
dollars away in every case.
    Chairman Feingold. All right. Any other comments on that 
point?
    Professor Wedgwood, yes?
    Ms. Wedgwood. Very briefly. And I think it is a very 
valuable discussion to be having, particularly since it can be 
done in a situation of calm and calm reflection.
    But I guess my concerns are that while we all understand, 
know, love, cherish, engage in, and relish our complicated 
constitutional system, that one of the reasons why one does not 
necessarily want to resolve these ultimate constitutional 
questions, why it is important to still have out there a 
coherent theory that the executive has certain powers, is 
because our adversaries could at times mistake our separation 
of powers and our checks and balances for indecision.
    And we all remember that al Qaeda tape, or that Al Jazeera 
tape, when Osama is visiting the sheik, who cannot get up, and 
says, ``Watch, people like a strong horse not a weak horse.'' 
And he assumes that the region will go where there is a 
perception of kind of Caudillo culture and macho power.
    And I think any person worries, whether in a family or in a 
government, that internal debate could be mistaken by an 
adversary for indecision where ultimately it will not be, I 
trust. But national unity clearly should be our most important 
goal.
    I do think on principle there is a difference between what 
the 18th century understanding of war was and self-defense, 
because that was the age of--one still had Clausewitzian war up 
through the end of the nineteenth century, where since the U.N. 
Charter one of the reasons why no one declares war anymore is 
we only do self-defense, you declare self-defense. It doesn't 
sound quite right.
    And so I think you actually have an interesting 
convergence. The times we use war are very much the times that 
fit the imputed authority of the Presidents by analogy to 
Article 1, Section 10, or in his power of Commander in Chief. 
Presidents do not engage in wars anymore to gain territory or 
riches or manifest destiny for new parts of the continent. So 
in a sense, I think the 18th century version of war is antique.
    And secondly, even then, there was a coherent argument that 
the purpose of the declaration was to put neutrals and third 
parties on notice--and insurance companies--that there was a 
state of war.
    And then I will finally just note as a historical footnote 
before putting this to bed that Lincoln began the Civil War 
without a declaration of force from the Congress. That was the 
important difference between him and Buchanan.
    And finally on the Nazis, the Nazis were every bit as 
vicious, to be sure, but we knew where to find them and they 
had an address, they had a territory.
    Here again, the difficulty of even framing what a 
congressional resolution could look like is--it might have to 
amount to generic categories. ``Congress authorizes the use of 
force wherever a terrorist group which threatens to use weapons 
of mass destruction against the American people or our allies 
may be found.'' It is going to be almost so generic that it 
maybe frustrating to the Congress itself.
    If you get below that, what do we know about Iraq? What do 
we know about Somalia? Then you get to the problem of 
intelligence-sharing.
    So I think it is a very real problem that in the case of a 
ubiquitous, ephemeral enemy, you really cannot declare war or 
authorize force with a specificity that Congress is accustomed 
to from the past land battles of the earlier period of the 
republic.
    Chairman Feingold. Well, I think actually that is what we 
did a fairly good job of doing in Senate Joint Resolution 23. 
We narrowed it to what we knew at the time with the assumption 
that since this is going to be a long effort, that we may have 
to have future authorizations. It seems to me, given the fact 
that the attack had just occurred a couple of days before, it 
was fairly good.
    Ms. Wedgwood. I am not quarreling with its elegance, only 
just to note that even in that language it notes that the 
authority extends to the organizations, nations, persons that 
the President determines did the following things.
    Chairman Feingold. Fair enough. But it was possible, 
instead of just throwing up our hands and saying there is no 
way to define this and let the executive do whatever they want, 
it was possible to put some parameters. And I am very pleased 
we did that.
    Let me ask a little more specific question.
    Mr. Yoo, how do you interpret the War Powers Resolution, 
particularly Section 4(c), which states that ``the President 
shall report to the Congress periodically on the status of such 
hostilities or situation as well as on the scope and duration 
of such hostilities or situation, but in no event shall he 
report to the Congress less often than once every six months''? 
Did Senate Joint Resolution 23 authorizing the use of force 
trigger that reporting requirement in your view?
    Mr. Yoo. Senator, I think that we are committed to making 
reporting requirements that are consistent with the War Powers 
Resolution. And you will note that we have just recently done 
that. On March 20th, we submitted, I think, a report within the 
required time limits that would be consistent with the War 
Powers Resolution. And the President also submitted reports 
soon after September 11th, when forces were deployed to the 
Pacific and Central commands, and also when combat first 
started in Afghanistan. So the administration is submitting 
reports that will be consistent with the War Powers Resolution.
    Chairman Feingold. I certainly agree with that. But I heard 
you indicate that the administration is committed to it. Do you 
agree that the reporting requirement does in fact apply to our 
ongoing anti-terrorism operations?
    Mr. Yoo. Because of Senate Joint Resolution 23?
    Chairman Feingold. Is it a requirement that the executive 
must follow?
    Mr. Yoo. As a matter of law? Let me say this. I do not 
think there is a constitutional problem with Congress asking 
the President to make reports at certain intervals about 
activities. If that reporting requirement is some kind of 
standard that has to be met in order to receive authorization 
to use force, I think on that point the administration would 
disagree, because we think that the President's power to use 
force in this situation against terrorists, particularly those 
connected with September 11th but also to preempt any future 
terrorist attacks, comes from the Constitution itself.
    But if the reporting requirement is seen as just Congress 
asking the executive branch for reports, that does not raise a 
constitutional problem in our mind.
    Chairman Feingold. And as you have indicated, the President 
has apparently filed three reports under Senate Joint 
Resolution 23. Could you describe how those reports are 
prepared?
    Mr. Yoo. I do not think I am permitted to, because that 
matter would be privileged. That would be a matter of internal 
executive branch deliberations.
    But I can say that they are thoroughly discussed and vetted 
within the executive branch by all the relevant agencies 
involved. And they are taken extremely seriously by the 
President and the White House and the major agencies.
    Chairman Feingold. On that regard, you have mentioned these 
three reports, and you know that they are very short, and they 
do not give us very much information on the status or scope or 
duration of our military engagements as required by statute.
    For example, a report dated September 24th, 2001, states 
that ``it is not now possible to predict the scope and duration 
of these deployments and the actions necessary to counter the 
terrorist threat to the United States. It is likely that the 
American campaign against terrorism will be a lengthy one.'' 
And then in a later report to Congress, one on October 9th, 
2001, the President reported in almost identical terms that: 
``It is not possible to know at this time either the duration 
of combat operations or the scope and duration of the 
deployment of U.S. armed forces necessary to counter the 
terrorist threat to the United States.''
    Of course I know that this is a difficult military 
campaign, and it is indeed difficult to predict where it will 
take us, but these notifications from the President are not 
terribly helpful.
    And you just discussed the most recent one, March 20th, 
2002, which provides some additional detail on operations in 
Afghanistan, the Philippines, Georgia and Yemen, but only the 
most basic of details. And again it repeats that: ``It is not 
possible to know at this time either the duration of combat 
operations or the scope and duration of the deployment of U.S. 
armed forces necessary to counter the terrorist threat to the 
United States.''
    Now, my concern is that these reports might as well invite 
us to read the details in the newspaper.
    Mr. Yoo. I would say that is usually how I find out what is 
going on.
    [Laughter.]
    Chairman Feingold. Or CNN, of course.
    Can you say that these reports are truly responsive to the 
legislative intent of the War Powers Resolution?
    Do any other members of the panel, after Mr. Yoo responds, 
who have been engaged in this issue for such a long time, have 
any comments on the adequacy of these reports? Do they achieve 
the objectives of the War Power Resolution?
    I will begin with you.
    Mr. Yoo. Well, I mean, part of that depends on what you 
think the intention or purpose of the War Powers Resolution 
notification reporting system is. I mean, I do not think that 
the reports fall below whatever is required to be consistent 
with the statutory standard. I think what you are asking for is 
you want more than what the War Powers Resolution actually 
calls for.
    I think another point to make is I think there is no 
attempt by the administration here to be opaque or evasive. I 
think part of it is an attempt to be honest. I mean, as you 
have pointed out in your floor statements and as several 
members of the panel have pointed out, it is impossible to 
predict exactly how our forces are going to be used, because it 
is impossible to predict the enemy. This enemy is difficult to 
locate. They do not have a capital or a territory. And it is, 
as you yourself point out, it is very difficult, therefore, to 
figure out how our forces are going to be used until we get the 
information immediately.
    So I think what you have seen over these three reports is 
that they do become more comprehensive with the March one being 
more comprehensive, because after the events have occurred, we 
know more and we can report to Congress more often on that. But 
it is I think in part because of the nature of the enemy we 
face.
    The other thing I would point out is there is, I think, an 
operational security concern. Al Qaeda in particular is an 
enemy that has demonstrated an ability to monitor what happens 
in the United States in our political system. I think as you 
know from the hearings that where the Attorney General appeared 
last year, they seem to be very sophisticated in the workings 
of our legal and political systems.
    And so I think have to be even more conscious and careful 
in this conflict than we might be in other ones, in making sure 
that we do not tip off or release any kind of information that 
might be helpful to the enemy.
    Chairman Feingold. As I think I said to the Attorney 
General at the time, as long as we do not sort of change our 
legal system without actually legislating it or 
constitutionally altering it because of that threat, it would 
make me feel better.
    Mr. Kmiec. Mr. Chairman.
    Chairman Feingold. Yes, Dean.
    Mr. Kmiec. I come from an era of Office of Legal Counsel 
that was probably less cooperative than the current one that 
you have. But I would fight a little bit with the premise.
    Section 4(a)(1), which I think you were referring to, if I 
understand correctly, requires reporting in the absence of 
either a declaration of war or a congressional authorization. 
But as we have been making frequent reference to today, we have 
had a congressional authorization. Whether it was needed or not 
we can debate. And therefore in terms of the reporting 
requirement, one I think might be able to argue that 4(a)(1) 
has not been triggered. Perhaps you are referring to a 
different section of Section 4.
    Chairman Feingold. 4(c). ``Whenever United States armed 
forces are introduced into hostilities or into any situation 
described in subsection (a) of this section, the President 
shall, so long as such armed forces continue to be engaged in 
such hostilities or situation, report to the Congress 
periodically on the status of such hostilities or situation, as 
well as on the scope and duration of such hostilities or 
situation, but in no event shall he report to the Congress less 
often than once every six months.''
    Mr. Yoo. Senator, can I just amend mine just to be 
complete--because I do not want to mislead you--that the 
administration has been conducting regular briefings with the 
Armed Services and Intelligence committees. So we also want to 
make sure the administration makes efforts to cooperate and 
consult with the Congress. It does not just do it through these 
letters and through these notifications.
    Chairman Feingold. Fair enough.
    Other reactions to the adequacy.
    Mr. Frye.
    Mr. Frye. Well, just a technical point. I am free of the 
knowledge that Mr. Yoo brings to the table about current 
arrangements. But as early as 1974, there was a dedicated war 
powers reporting system established in the operations director 
of the JCS. And from the military, information was conveyed to 
the legal counsel in the Defense Department and shared 
simultaneously with the State Department. Those were to be the 
administrative processes on the basis of which a recommendation 
would go to the President as to whether a report would be 
required.
    That may have been changed in later practice. I cannot 
speak to it. But Secretary Kissinger and Secretary Schlesinger 
established those mechanisms to implement the reporting 
requirement within a few months of the enactment of the 
statute.
    I think President Bush is proceeding in good faith. I worry 
that perhaps some of the counsel he receives may suggest to him 
he has unfettered latitude to expand military operations beyond 
the intent of either the War Powers Resolution or Joint 
Resolution 23.
    But I think he is being very straightforward in 
acknowledging that he in fact cannot meet the standards set in 
4(c). When he says in his letters each time that it is not 
possible to know either the duration of combat operations or 
the scope and duration of the deployment of U.S. forces 
necessary to counter the terrorist threat, I think he is 
acknowledging and describing a reality we all accept as a part 
of this very fluid, very difficult circumstance.
    However, I do want to take issue with my colleague 
Professor Wedgwood. I do not believe that that recognition of 
the difficulty of anticipating the scope and duration of such 
an engagement excuses a failure to share information quite 
broadly with the relevant elements of the Congress. If we are 
about to deploy thousands, tens of thousands, scores of 
thousands of forces to pursue al Qaeda or conduct a military 
operation, I find it implausible to say that secrecy can be 
maintained in the executive branch when it could not be 
maintained by executive branch executive session deliberations 
with the relevant committees of the Congress.
    Chairman Feingold. Mr. Fisher.
    Mr. Fisher. I wanted to say something that is related to 
that. It was suggested earlier by Ruth Wedgwood that if there 
is internal debate, it might send a signal to the enemy that we 
have a weakness here. And I think it is quite the opposite.
    I think President Eisenhower said it very well, that it is 
with joint action with the two branches operating in concert, 
that that sends the best message not just to allies that they 
know the two branches are in for the long haul, but sends a 
message to enemies that there is no division inside the U.S. 
Government.
    Chairman Feingold. Thank you, Mr. Fisher. I felt some 
discomfort with that remark as well. So let's let Professor 
Wedgwood respond.
    Ms. Wedgwood. Lest I be seen as an enemy of checks and 
balances, I am all in favor of checks and balances. I just 
point out that, in culturally very different circumstances, in 
countries where Mr. Big is used to being the guy in charge, I 
am not sure he will always appreciate the way in which, 
symphonically, all the pieces will come together at the end in 
a working democracy.
    So I think it is important. And I am sure everybody in the 
process does make clear that the healthy debate that we have on 
how we use force in no way should be mistaken by an adversary 
for any lack of unity or any ultimate unwillingness to do what 
has to be done.
    And I think, frankly, when Presidents sometimes say, ``I do 
have the power to do this,'' it is not so much--they are not 
trying to disregard the Congress. I think it is meant almost as 
international signaling saying just, ``You folks out there who 
are not part of democratic processes abroad, our adversaries, 
do not mistake what we are doing. We are going to do it.'' And 
I think it is not meant so much internally.
    And let me just note that Alton very kindly handed me the 
March 20th letter to Speaker Hastert, which is one of the 
written reports. I think almost by definition the good stuff is 
never going to be in a written document, not until God does 
away with Xerox machines.
    Chairman Feingold. Just a quick comment, then I will go to 
Professor Stromseth.
    I am fascinated by your argument, as I have indicated 
before, that this is such a fundamentally different kind of 
threat, in effect that the world has changed and we are facing 
a different threat. I am reminded of my friend Tom Friedman's 
brilliant work. But his comment that he ultimately had to 
retract is that the world has changed with globalization and we 
are not going to attack a country that has a McDonald's--and 
then we bomb Belgrade.
    You know, these assumptions that the world is fundamentally 
changed and these are threats that are not sort of something 
that we can work within the constitutional structure is 
something that I do not want to accept. But I think you have to 
look at this with an open mind and realize that we have never 
seen this before.
    But I think we also have to let time settle in a little bit 
and see if maybe the constitutional structure that was set up 
and the assumptions that were made are actually very 
appropriate for this.
    But it is a difficult question, I give you that.
    Professor Stromseth.
    Ms. Stromseth. Yes, I just wanted to follow exactly on that 
point. I mean, the founders lived in very dangerous and 
difficult times as well. We were a weak country. We were 
subject to attack, invasion. And it was a situation where there 
were many, many threats.
    And I think very practically in the Constitution, they made 
a distinction between the President's ability to repel attacks, 
to repel war, and Congress' decision to make the affirmative 
decision to enter into war. That is why they changed the 
language from ``make'' to ``declare,'' to underscore that 
distinction between commencing and repelling war, and also to 
underscore that the President has the tactical authority as 
Commander in Chief to make the operational decisions.
    There was I think eminent wisdom in the way they thought 
about the different attributes of the two branches and how they 
would work together effectively for the Nation.
    And on the point of consultation, Senator, I completely 
agree with you. The point of consultation is not to micromanage 
operational decisions. It is to discuss broad objectives and to 
make sure that the country is behind those broad objectives.
    And finally, I cannot resist quoting James Madison, my 
favorite founder, who said, reflecting on the Constitution's 
allocation of war powers, ``In no part of the Constitution is 
more wisdom to be found than in the clause which confides the 
question of war or peace to the legislature and not to the 
executive department.''
    And of course the wisdom I think he was referring to is 
precisely the wisdom that your constituents out in Wisconsin 
are talking about, the sense that these decisions are difficult 
decisions, they require deliberation, they require consensus, 
and they are not decisions that simply should be made by one 
person alone.
    But once they are made, you do not want to micromanage a 
lot of the details. You want to make sure that there is a 
continuing consensus on the overarching aims.
    Chairman Feingold. Very good.
    So as to not violate another provision of the Constitution, 
the Eighth Amendment, I am just going to ask one more question, 
given the fact we have not even had a break. But let me do 
this.
    At various times since 1973 and again recently, Members of 
Congress have proposed the idea of a select consultation group 
within Congress that would allow the President to provide more 
meaningful and more frequent briefings to a small group of 
Members. And I believe some of you referred to that.
    The idea is that this group could then bring the message 
and the substance of those consultation back to both houses of 
Congress.
    And, Professor Stromseth, I believe you mentioned that 
proposal. And I wonder if you could say a bit more about it? I 
think Professor Glennon raised some concerns. And I hope your 
responses will be beyond the fact that I am concerned that I 
would not be in the group.
    Ms. Stromseth. Actually, Senator, I testified before the 
Senate Judiciary Committee I think it was eight years ago, and 
this same question came up. And you asked the same question. 
And I have been thinking about it ever since, because I think 
it is a very good one.
    In fact, the question you asked then was, shouldn't there 
be a more diverse set of individuals involved in a consultative 
group? I mean, isn't there a sense that if you have the same 
folks, that they will not tend to ask harder questions about 
the underlying--or challenge the underlying premises?
    So I guess while I would like to see some sort of 
consultative mechanism that is more regular, that is accepted 
and embraced by both branches, I would like to see some way of 
ensuring that it does somehow include a more diverse group of 
people, so it does allow for, I think, a greater range of 
perspectives to be represented.
    Chairman Feingold. Professor Glennon.
    Mr. Glennon. Senator, I have reservations about such a 
group for a number of reasons that are spelled out in my 
testimony. Two principal ones are as follows.
    First, the membership, which you and Professor Stromseth 
have just been talking about, would not likely include the 
sorts of individuals, young Turks, naysayers and agnostics and 
skeptics, who are essential to avoiding the second phenomenon 
that causes me to have reservations about such a group, namely, 
processes of group think.
    One of the most important books I have ever read, which has 
influenced my thinking about these sorts of things is a book 
entitled ``Groupthink'' by Irving Janis, who analyzes why some 
groups, such as the EXCOM during the Cuban Missile Crisis did 
not develop the kinds of paralysis and inability to question 
conventional wisdom that seem to prevail in other groups. And I 
am afraid that a group that is as insular as this group 
probably would be would likely fall victim to this phenomenon 
of group think.
    It needs to--and this is the key thing--have an independent 
status that causes it to have an independent staff that are 
regularly in the stream of information about crises before 
those crises develop, rather than like the NSC staff.
    It would not have that. The executive, given the experience 
that we have had with these reporting requirements--I have been 
reading these reports for 30 years now. They are useless. I do 
not think a single report that has been provided under the War 
Powers Resolution has ever generated so much as a newspaper 
story about any news that has been revealed in that. That is 
the kind of information that is shared voluntarily by the 
executive with the Congress.
    And I am afraid that you would not, therefore, have a 
committee with the continuing status whose staff is knee deep 
in the kinds of contingency studies and ongoing information 
that would be essential to making it work correctly.
    Chairman Feingold. Mr. Fisher.
    Mr. Fisher. Yes, I think one of the great strengths of 
Congress to me is the decentralization. People often call it 
fragmentation or splintering. But decentralization with your 
subcommittees and your committees, that to me is where the 
vitality and different approaches and different thinking come 
from.
    I have not been comfortable in recent years with the budget 
summits that come up with a handful of members doing this. At 
least there they have to come back and get authorization 
through the regular public law.
    But I think the strength of Congress has to rely on the 
expertise in committees and subcommittees. And any move upward 
to centralize I think ends up weakening Congress.
    Chairman Feingold. I thank you.
    Well, I want to thank this terrific panel. I was very 
honored to have the chance to listen to all of you and ask you 
questions. You have given me a lot of things to think about as 
we go forward.
    But I do think this is very important for the continued 
vitality of our Constitution. I think this discussion and 
trying to come together on this is very important for our 
number one priority of our country, which is fighting 
terrorism.
    There is no doubt in my mind that that is our first 
priority. And I want to make sure we get it right. And I want 
to make sure we do it in the best American tradition.
    So I thank you.
    And I ask consent that Senator Hatch, his statement be 
placed in the record.
    [The prepared statement of Senator Hatch follows:]
    Statement of Orrin Hatch, a U.S. Senator from the State of Utah
    Mr. Chairman, I am one who strongly believes that we all must leave 
our political party affiliations at the door when it comes to our 
national security and supporting our troops in the field. When 
President Clinton drew criticism for sending our troops to Kosovo, I 
stood on the floor of the Senate and spoke out in support of his use of 
military force. I say now, as I said then, that I believe the 1973 War 
Powers Resolution is an unconstitutional encroachment on executive 
power by the legislative branch. And, my legal assessment remains the 
same regardless of who happens to sit in the White House.
    All of us should continue to support the President during these 
obviously difficult times. That was precisely the message we conveyed 
in passing the joint resolution on September 15--days after terrorists 
murdered thousands of Americans in a series of cowardly attacks. In the 
midst of this grave crisis, we endorsed the President's unqualified 
authority to use ``all necessary and appropriate force'' against any 
Nation or organization that ``he determines'' aided in the terrorist 
attacks. Furthermore, we recognized in the joint resolution that it 
also, for what it was worth, constituted specific authorization under 
the War Powers Resolution.
    The entire Senate has spoken with one voice with respect to the 
President's authority to use military force against any Nation that 
aided or harbored terrorist organizations.
    We sit here today 7 months after the most disastrous and 
destructive terrorist acts in our history. The fires have died in lower 
Manhattan, and the smoke has cleared from the skies over the Pentagon, 
but bodies still lie trapped under the rubble, and our Nation and 
thousands of American families still live daily with a deep, unyielding 
grief. The overwhelming majority of Americans stand shoulder-to-
shoulder with the President in our fight to rid the world of terrorists 
who would do Americans harm.
    I hope that today's hearing will provide more information on how we 
can aid the President in making sure he has all the tools necessary to 
keep our citizens safe. I look forward to hearing from today's panel of 
distinguished scholars. Particularly, I want to welcome one of this 
Committee's most respected former counsels, Professor John Yoo, who is 
now a leading authority on the scope of Presidential war powers.

    Chairman Feingold. And we will leave the record open for a 
week, for witnesses to submit additional information and also 
for Senators to direct written questions to the witnesses.
    Again, thank you very much. And the hearing is concluded.
    [Whereupon, at 3:45 p.m., the subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow:]
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