[Senate Hearing 110-902]
[From the U.S. Government Publishing Office]
S. Hrg. 110-902
EXERCISING CONGRESS'S CONSTITUTIONAL POWER TO END A WAR
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JANUARY 30, 2007
__________
Serial No. J-110-5
__________
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 ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 8
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
prepared statement........................................... 150
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 6
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 170
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 186
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Barron, David J., Professor of Law, Harvard Law School,
Cambridge, Massachusetts....................................... 10
Berenson, Bradford, Partner, Sidley Austin LLP, Washington, D.C.. 15
Dellinger, Walter, Douglas B. Maggs Professor of Law, Duke
University School of Law, Durham, North Carolina, and Former
Acting Solicitor General....................................... 17
Fisher, Louis, Specialist in Constitutional Law, Law Library,
Library of Congress, Washington, D.C........................... 14
Turner, Robert F., Center for National Security Law, University
of Virginia School of Law, Charlottesville, Virginia........... 12
QUESTIONS AND ANSWERS
Responses of David J. Barron to questions submitted by Senators
Whitehouse and Kennedy......................................... 33
Responses of Bradford Berenson to questions submitted by Senator
Whitehouse..................................................... 41
Responses of Louis Fisher to questions submitted by Senators
Whitehouse and Kennedy......................................... 43
Responses of Robert F. Turner to questions submitted by Senator
Whitehouse..................................................... 49
Questions submitted by Senators Kennedy and Whitehouse to Walter
Dellinger (Note: Responses to questions submitted by Senators
were not received as of the time of printing, November 2, 2009)
SUBMISSIONS FOR THE RECORD
Barron, David J., Professor of Law, Harvard Law School,
Cambridge, Massachusetts, prepared statement................... 58
Berenson, Bradford, Partner, Sidley Austin LLP, Washington, D.C.. 65
Center for American Progress, Washington, D.C.................... 80
Congressional Restrictions on U.S. Military Operations, (CRS
Report, January 16, 2007), Washington, D.C..................... 85
Constitution Project, Washington, D.C., report................... 115
Dellinger, Walter, Douglas B. Maggs Professor of Law, Duke
University School of Law, Durham, North Carolina, and Former
Acting Solicitor General, prepared statement and letter........ 145
Fisher, Louis, Specialist in Constitutional Law, Law Library,
Library of Congress, Washington, D.C., prepared statement...... 153
Grimmett, Richard F., Specialist in National Defense, Washington,
D.C., CRS Report (Congressional Use of Funding Cutoffs)........ 164
Kmiec, Douglas W., Chair and Professor of Constitutional Law,
Pepperdine University School of Law, Malibu, California, letter 178
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania:
Attorney General Alberto Gonzales, January 30, 2007, letter.. 188
Attorney General Alberto Gonzales, January 26, 2007, letter
and attachment............................................. 189
Turner, Robert F., Center for National Security Law, University
of Virginia School of Law, Charlottesville, Virginia........... 203
Whose War Powers?, Noah Feldman, February 4, 2007, article....... 266
EXERCISING CONGRESS'S CONSTITUTIONAL POWER TO END A WAR
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TUESDAY, JANUARY 30, 2007
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, presiding.
Present: Senators Feingold, Kennedy, Durbin, Cardin,
Whitehouse, Specter, Hatch, and Graham.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator Feingold. Good morning. I call the Committee to
order. Welcome to this hearing of the Senate Judiciary
Committee entitled ``Exercising Congress' Constitutional Power
to End a War.'' We are honored to have with us this morning a
distinguished panel of legal scholars to share their views on
this very important and obviously timely issue.
I really do want to thank Chairman Leahy for allowing me to
chair this hearing. Let me start by making a few opening
remarks, and I will recognize Senator Specter for an opening
statement, and then we will turn to our witnesses.
It is often said in this era of ubiquitous public opinion
polls that the only poll that really matters is the one held on
election day. On November 7, 2006, we had such a poll, and all
across this country the American people expressed their opinion
on the war in Iraq in the most significant and meaningful way
possible. They voted. And with those votes, they sent a clear
message that they disagree with this war and they want our
involvement in it to stop.
The President has chosen to ignore that message, so it is
up to Congress to act. The Constitution gives Congress the
explicit power ``to declare War,'' ``to raise and support
Armies,'' ``to provide and maintain a Navy,'' and ``to make
Rules for the Government and Regulation of the land and naval
Forces.'' In addition, under Article I, ``No Money shall be
drawn from the Treasury, but in Consequence of Appropriations
made by Law.'' These are direct quotes from the Constitution of
the United States.
Yet to hear some in the administration talk, it is as if
these provisions were written in invisible ink. They were not.
These powers are a clear and direct statement from the Founders
of our Republic that Congress has the authority to declare, to
define, and ultimately to end a war. Our Founders wisely kept
the power to fund a war separate from the power to conduct a
war. In their brilliant design of our system of Government,
Congress got the power of the purse and the President got the
power of the sword.
As James Madison wrote, ``Those who are to conduct a war
cannot in the nature of things, be proper or safe judges,
whether a war ought to be commenced, continued, or concluded.''
The President, in my view, has made the wrong judgment
about Iraq time and again--first by taking us into a war on a
fraudulent basis, then by keeping our brave troops in Iraq for
nearly 4 years, and now by proceeding, despite the opposition
of the Congress and the American people, to put 21,500 more
American troops into harm's way.
If and when Congress acts on the will of the American
people by ending our involvement in the Iraq war, Congress will
be performing the role assigned it by the Founding Fathers--
that is, defining the nature of our military commitments and
acting as a check on a President whose policies are weakening
our Nation. There is little doubt that decisive action from the
Congress is needed.
Despite the results of the election and 2 months of study
and supposed consultation, during which experts and Members of
Congress from across the political spectrum argued for a new
policy, the President has decided to escalate the war. When
asked whether he would persist in this policy despite
congressional opposition, he replied, ``Frankly, that's not
their responsibility.''
Last week, Vice President Cheney was asked whether the
nonbinding resolution passed by the Foreign Relations Committee
that will soon be considered by the full Senate would deter the
President from escalating the war. He replied, ``It's not going
to stop us.''
In the United States of America, the people are sovereign,
not the President, and it is Congress' responsibility to
challenge an administration that persists in a war that is
misguided and that the country opposes. We cannot simply wring
our hands and complain about the administration's policy. We
cannot just pass resolutions saying your policy is mistaken.
And we cannot stand idly by and tell ourselves that it is the
President's job to fix the mess he made. It is also our job to
fix the mess, and if we do not do so, I think we are abdicating
our responsibilities.
So tomorrow I will introduce legislation that will prohibit
the use of funds to continue the deployment of U.S. forces in
Iraq 6 months after the enactment of the bill. By prohibiting
funds after a specific deadline, Congress can force the
President to bring our forces out of Iraq and out of harm's
way. The legislation will allow the President adequate time to
redeploy our troops safely from Iraq and will make specific
exceptions for a limited number of U.S. troops who would remain
in Iraq to conduct targeted counterterrorism and training
missions and protect U.S. personnel.
It will not hurt our troops in any way. They will continue
receiving their equipment, training, and salaries. It will
simply prevent the President from continuing to deploy them to
Iraq. By passing this bill, we can finally focus on repairing
our military and countering the full range of threats that we
face around the world.
Now, there is plenty of precedent for Congress exercising
its constitutional authority to stop U.S. involvement in armed
conflict. In late December 1970, Congress prohibited the use of
funds to finance the introduction of United States ground
combat troops into Cambodia or to provide U.S. advisors to or
for Cambodian military forces in Cambodia.
In late June 1973, Congress set a date to cut off funds for
combat activities in Southeast Asia. The provision read, and I
quote, ``None of the funds herein appropriated under this Act
may be expended to support directly or indirectly combat
activities in or over Cambodia, Laos, North Vietnam, and South
Vietnam by United States forces, and after August 15, 1973, no
other funds heretofore appropriated under any other Act may be
expended for such purpose.''
More recently, President Clinton signed into law language
that prohibited funding after March 31, 1994, for military
operations in Somalia, with certain limited exceptions. And in
1998, Congress passed legislation including a provision that
prohibited funding for Bosnia after June 30, 1998, unless the
President made certain assurances.
Now, our witnesses today are well aware of this history,
and I look forward to hearing their analysis of it as they
discuss Congress' power in this area. They are legal scholars,
not military or foreign policy experts. We are here today to
find out from them not what Congress should do, but what
Congress can do. Ultimately, of course, it rests with the
Congress itself to decide whether to use its constitutional
powers to end the war.
The answer should be clear. Since the President is adamant
about pursuing his failed policies in Iraq, Congress has the
duty to stand up and use its power to stop him. If Congress
does not stop this war, it is not because it does not have the
power. It is because it does not have the will.
Now let me recognize the Ranking Member, Senator Specter,
for any opening comments he would like to make.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. I thank
Chairman Leahy and you, Senator Feingold, for convening this
very, very important hearing, and I thank the very
distinguished array of experts who are here to give us some
constitutional scholarly insights into these important issues.
Before addressing the subject at hand, I want to make a
very brief comment on a matter of some urgency. On Friday, the
New York Times reported that there were procedures being
employed in the Sixth Circuit and in the United States District
Court in Oregon on the testing of the constitutionality of the
Terrorist Surveillance Program which might undercut the ability
of the litigants to present their case on a very important
constitutional issue. And I wrote immediately to Attorney
General Gonzales, and I received an answer yesterday from his
Office of Legislative Affairs. And I would ask unanimous
consent that both of those letters be incorporated in the
record.
Senator Feingold. Without objection.
Senator Specter. With the additional comment that the
explanation in my judgment is insufficient. This is a very
pressing matter, and this Committee has undertaken very
extensive oversight on this program, with some four hearings
last year and legislation to bring that program under the
Foreign Intelligence Surveillance Court. I am glad to see it is
there. I do not think it eliminates the pending cases in the
Federal court, and I believe this is a matter which will
require considerable oversight by this Committee on an
immediate basis.
It is hard to have a problem more urgent than the Terrorist
Surveillance Program, but we have one here today. It seems that
one problem piles onto another, and all of enormous importance.
My own judgment on the current confrontation between the
executive and legislative branches, Article I and Article II,
is that it leads to the answer that we have shared powers.
Shared powers. The genius of the Constitution is in the
separation of power and the checks and balances, and it is not
only the checks and balances between Article I and Article II,
the Congress and the executive, but Article III, the judicial
branch. And it is my hope that we will yet avoid the
confrontation which is imminent, with the Senate scheduled to
take up these resolutions next week.
Senator Lugar has an op-ed piece in the Washington Post
today with some words of wisdom. Senator Lugar often has words
of wisdom. I think they are especially wise today, and I make a
couple of references. ``The President and Congress must reach a
consensus on how to protect our broader strategic interests
regardless of what happens in those Baghdad neighborhoods or on
the floor of the Senate. Otherwise, the fatigue and frustration
with our Iraq policy that is manifest in the resolutions of
disapproval before the Senate could lead not just to the
rejection of the Bush plan but also to the abandonment of the
tools and relationships we need to defend our vital interests
in the Middle East.''
We have an atmosphere, regrettably, of considerable
suspicion with what the executive branch is doing to expand
executive authority, really an ideological approach. And there
are key figures in the administration who make no bones about
it, very direct and very blunt, when they seek signing
statements to contravene what is in the legislation the
President has signed, where you have the Terrorist Surveillance
Program or where you have the acts in Guantanamo that has to be
struck down by the Supreme Court of the United States. And that
has set the stage for, if not an atmosphere of distrust, an
atmosphere of confrontation.
There have been meetings. I attended one with the
President. I attended another with the National Security
Counselor Stephen Hadley. And those meetings are good. There is
an overtone, I must say, more of persuasion by the
administration than of consultation, but the voices in Congress
which have been expressed are many undisputably friendly voices
for the President--friendly voices of Republicans. I think the
Democratic voices are not unfriendly voices, but there is an
overtone perhaps of partisanship. But the Republican voices,
mine included, which have been heard are friendly voices,
really trying to work with the President to find an answer. And
the words of Senator Lugar pick up on an alternative plan which
has been floated, and this is what Senator Lugar says in a
nutshell: ``. . . with troops stationed outside urban areas
in Iraq. Such a redeployment would allow us to continue
training Iraqi troops and delivering economic assistance, but
it would not require us to interpose ourselves between Iraqi
sectarian factions.''
The President has asked for alternatives as well as
objections, and the plan which has been articulated by key
military figures and key political figures to give the Iraqis a
time reference that they are going to have to act to restrain
the sectarian violence and they are going to have to take over
the security in Baghdad, those are two conditions explicitly
laid down by the President in his State of the Union speech,
and not to reduce our forces in Iraq, but to take them out of
the cities where they are in the midst of the gunfire in what
is conclusively a civil war, and to protect the infrastructure,
to protect the oil resources, to aid and train the Iraqis, but
not to try to deal with the sectarian violence which has led to
so many casualties. And it would be my hope that the President
would yet consider that option and perhaps other options in an
effort to avoid the confrontation which is going to come next
week.
The President repeatedly makes reference to the fact that
he is the decider. I would suggest respectfully to the
President that he is not the sole decider, that the decider is
a shared and joint responsibility, and that when we talk about
the authority of the Congress on the power of the purse and the
authority under Article I to maintain armies, we are talking
about authority which ought to be recognized.
There is one portion of Article I which I think has had
insufficient attention, and that is the section which says,
``to raise and support armies, but no appropriation of money to
that use shall be for a longer term than 2 years.''
Now, there is an express constitutional statement which is
superior to the President's generalized Article II authority or
the congressional generalized Article I authority. The
Constitution says it cannot be for a period longer than 2
years. I would supplement what Senator Feingold has said to
point out that in 1974, legislation was signed by President
Ford, passed by Congress, which said the troops have to be
reduced to 4,000 in Vietnam within 6 months and 3,000 within a
year.
The President has shown flexibility on quite a number of
matters. He opposed the 9/11 Commission, then agreed to it. He
opposed the Department of Homeland Security, then agreed to it.
He opposed the Weapons of Mass Destruction Commission, then
agreed to it. He opposed putting the Terrorist Surveillance
Program under the FISA Court, then agreed to it. And he opposed
increasing our troops in Iraq, and now he is doing it.
So I would say, with my red light about to go on, Mr.
President, reconsider and recognize the shared responsibility
with the Congress, and let's work it out, and to respect
Senator Feingold who has stated the dominant fact of the entire
matter, and that is, the election. And it is true that the
people are sovereign, and it is not a public opinion poll. It
is a statement of policy reinforced by our Congress in a
representative democracy.
Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator Specter. Not only am I
honored to have served with you on this Committee in many
capacities, with you as Ranking Member of the Committee, and as
Chairman of the Committee, but your statement indicates the
important bipartisan role you play of trying to protect the
role of the Constitution.
It is interesting you talk about the NSA issue because it
is really very closely related to what we are doing here today.
This administration on many occasions and in many areas has put
out a notion of Executive power that is not only extreme, but
in many cases flies directly in the face of the words of the
Constitution. You and I both are very pleased that the NSA
program has come within the FISA process, and I intend to
continue to work with you on that. And I am also grateful for
your strong remarks about Congress' power and the type of
system that we have. And I think it is an excellent way to kick
off this hearing.
Now I would like to turn to Senator Hatch, who, of course,
is also a very distinguished member of the Committee, a former
Chairman of the Committee, who I have enjoyed serving with.
Senator Hatch, would you like to make some remarks?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. If I could. I have enjoyed serving with you
as well, Senator, and certainly with Senator Specter, who is
doing a very good job on our side on this Committee.
You know, words have meaning and titles send messages. The
title of today's hearing, when it refers to Congress's
constitutional power to end a war, can be taken at least two
ways. To some, it might sound like an assertion of an explicit
power directly to terminate a war or declare it over. If that
is its message, that is incorrect. The Constitution grants no
such power.
The convention that framed our Constitution rejected
empowering Congress to make war in favor of declaring war.
Similarly, that convention unanimously rejected an amendment
that would have granted Congress the power to declare peace. So
the idea that Congress has some explicit power directly to end
war or to declare peace does not come from the Constitution.
The title of today's hearing might instead be saying that
the Constitution grants powers to Congress which might be used
to help bring a war to an end.
In general, that is a more defensible proposition that
where we end up depends on where we start. I believe we must
start with and be guided by the Constitution--not any
constitution or a constitution invented to give us what we want
at the moment, but the real Constitution. The real Constitution
is built on the principle of the separation of powers which
James Madison said has more intrinsic value than any other
political truth. Only Congress can declare war, but while a
declaration of war is necessary to define certain legal
relationships between nations or with our own citizens, it is
not necessary for the United States to engage in armed
conflict. Congress has the authority to raise and support
armies, but while this relates to the existence of the armed
forces, it does not extend to commanding them in conflict or
dictating battlefield policies and tactics.
Some politicians here in Washington want to say what they
would have done about authorizing force in the war on terror if
they knew then what they know today. Neither our personal nor
political lives work that way. We have to do our best today
based on what we know and what we have available to us today.
It seems to me that the separation of powers leaves those
who oppose the war with two options: they can either try to
defund our troops, or they can add to the overall debate by
publicly expressing their views. And we have, of course, both
views being represented here on Capitol Hill. In exercising
either of those options, I think we must consider not only our
policy objectives but also the message that we send by our
actions. We all know what the polls say about general support
for that portion of the war on terror currently taking place in
Iraq. We all saw on the news the public demonstrations as well
as the vandalism taking place here in Washington just last
weekend. But in addition to sending a message to the general
public and the specific political constituencies, we must also
consider the message that we are sending to our troops--
[Protestors interrupt.]
Senator Feingold. The Committee will come to order.
Senator Hatch. I understand--
Senator Feingold. The Committee has a long history of free
speech, and I strongly support the First Amendment that
guarantees that right. But--
[Protestors interrupt.]
Senator Feingold. The Committee will be in order.
Senator Hatch. All right--
Senator Feingold. The Committee will stand in recess until
the police can restore order.
Senator Hatch. I think we have order. Let me just say that
I empathize with you, having lost my only brother in World War
II, having lost a brother-in-law in Vietnam, and having just
buried a top sergeant in the Marines in Arlington just a short
while ago. But some who say they support our troops turn around
and talk about defunding them, while others talk about--and I
am concerned about your son and others if we defund them here
and we do not support them and we do not do what is right. Or
others talk about splitting appropriations hairs to fund
certain troops but not others.
The message to our troops is that we--
[Protestors interrupt.]
Senator Hatch. Let me finish my remarks. The message to our
troops is that we no longer support them on our mission if we
talk that way.
Now, we have authorized whatever force is--
[Protestors interrupt.]
Senator Hatch. We have authorized whatever force is
necessary to fight this war, and then some talk about de-
authorizing certain uses of that force. The message to our
troops is that we no longer support them or their mission.
Now, some who voted to confirm General David Petraeus to
lead the troops--and it was unanimous--to lead the troops in
Iraq turn around and publicly attack the strategy that he
developed. The message to our troops is that we no longer
support them or their mission.
The Constitution distinguishes between a singular
declaration of war which it assigns to Congress and the active
engaging in or levying war, which it assigns to the President
or the Commander-in-Chief.
Now, disagreement with how the President uses his power
does not give Congress the power to step in and take over. That
would be the antithesis of the separation of powers.
Now, I realize that it is easy to acknowledge the
President's power when we agree with how he uses it. The real
test is when we disagree. Then the American people will see
whether there are some principles on which we in this body will
stand, or whether in the end it is just politics after all.
This is an important hearing, and there are very strongly
held views on all sides of these issues, certainly all sides of
the issues involving war, and there are more than two sides. It
is a very difficult time for us in Congress. It is an equally
difficult time for the President. And I think we have to take
into consideration all of these thoughts and do our very best
to--
[Protestors interrupt.]
Senator Feingold. Could we please--if we want to have this
hearing, I need your cooperation so that we can proceed.
Senator Hatch. That is all I have to say, Mr. Chairman.
Senator Feingold. Thank you, Mr. Chairman.
I would simply say that the kinds of arguments that Senator
Hatch has made--and he made them eloquently--are the kinds of
arguments that have repressed over the last few years valid
criticism of the Iraq war that would have, I think, caused us
to recognize our mistakes earlier. But we have a friendly and
open disagreement about that.
Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, thank you for calling this
hearing. It is long overdue. I am sorry that we did not
initiate this discussion earlier.
Clearly, there is a frustration and anxiety among the
American people about whether Congress has been listening. The
last election told us that people wanted a change. It is clear
that the American people do not want the change the President
has proposed. We will debate that in the days to come.
Though I disagree with the President's policies and was one
of 23 to vote against the Use of Force resolution, I commend
the President for coming to Congress for that vote. There were
Presidents in years gone by who did not bother to make the
trip, who decided to use force, commit troops, engage America
in a war without any congressional voice. Many times I thought
the silence of Congress was complicity; they did not want to be
put on the spot to vote. That is why we are here. We represent
a lot of good people across this country who count on us to be
their voice.
If you read the Use of Force resolution, the one that was
considered and enacted a little over 4 years ago, and try to
apply it to the situation today, you just wonder under what
authority do we continue what we are doing in Iraq. The
authorization that we gave the President--and I knew full well,
and I think most did, that if we gave him this authority, he
would use it--said that the President is authorized to use the
armed forces as he determines necessary and appropriate to
defend the national security of the United States against a
continuing threat posed by Iraq and enforce all relevant United
Nations Security Council resolutions regarding Iraq.
It goes on, of course, to speak about the threat of Saddam
Hussein, the threat of weapons of mass destruction. All those
are gone now, and the obvious question is: By what authority do
we continue this war? And I think it is an important
constitutional question.
Let me also say for those who argue that for the United
States Congress to engage in a bipartisan debate about our
Constitution and our policy is somehow, quote, emboldening the
enemy or undercutting our troops, they are wrong. This debate
is evidence of what a democracy is all about. If we truly want
democracy in Iraq and around the world, we need to lead not
just by our great military but by example to show that yes, we
can stand behind our troops--and we will-- and their families,
and still debate whether this is a wise policy or not.
And to suggest that this debate undermines morale is to
ignore another obvious fact--a fact which is shown in this
morning's newspaper. The President wants to send 21,000 more
soldiers into Iraq, and this morning's Washington Post tells us
they will go into battle without the equipment they need. They
will not have the body armor; they will not have the vehicles;
they will not have the equipment they need to go into battle.
Now, who is standing behind the troops when it comes to
escalating this war in Iraq? Those who question whether this is
the right policy in the right place, or those who would send
21,000 more into battle and risk their lives without giving
them the rest that they need, the time with their families, the
equipment and training that they need to come home safely?
I do not think that this is an indication of lack of
support for our troops. We need to acknowledge the obvious. The
President is the Commander-in-Chief, but we in Congress have a
constitutional responsibility. Mr. Chairman, your hearing today
will give us a chance to explore the options available to
Congress to express the will of the American people, and I
thank you for convening it.
Senator Feingold. Thanks, Senator Durbin.
I thank Senator Whitehouse, our new member of the
Committee, for his attendance as well.
We will now turn to our panel of witnesses. We will proceed
from the left to the right. I would ask the witnesses to limit
their oral testimony to 5 minutes, and your complete statements
will, of course, be included in the record.
Will all the witnesses now please stand and raise your
right hands to be sworn? Do you affirm that the testimony you
are about to give before the Committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Mr. Barron. I do.
Mr. Berenson. I do.
Mr. Dellinger. I do.
Mr. Fisher. I do.
Mr. Turner. I do.
Senator Feingold. Thank you. You may be seated.
Our first witness will be Professor David Barron from the
Harvard Law School. A graduate of Harvard Law School, Professor
Barron clerked for Judge Reinhardt in the Ninth Circuit and for
Justice Stevens on the United States Supreme Court. After his
clerkships, he worked in the Office of Legal Counsel at the
Department of Justice. In 1999, he joined the faculty at
Harvard Law School.
Professor Barron, welcome, and, of course, thank you for
making the time to be here this morning. You may proceed.
STATEMENT OF DAVID J. BARRON, PROFESSOR OF LAW, HARVARD LAW
SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Barron. Chairman Feingold and members of the Committee,
thank you for inviting me to address the constitutional
question that is the subject of this morning's hearing.
As Chairman Feingold mentioned, from 1996 to 1999 I served
as an attorney advisor in the Office of Legal Counsel of the
United States Department of Justice. I now teach at Harvard Law
School and write about, among other things, presidential power,
both the need for its vigorous protection and the extent to
which it can and should be limited.
The subject of this hearing is clearly a momentous one. I
have supplied the Committee with written testimony that reviews
relevant legal precedents dating back from the time of the
founding and running through up continuously more recent
history that, in my view, demonstrates an unbroken pattern
consistent with the constitutional text of a recognition of the
broad powers of the Congress to define the parameters,
including the size, scope, and duration of a military conflict.
Limits such as these have been adopted in every age, from the
Quasi-War on France right up through the Vietnam War. They have
been accepted by the Chief Justice of the United States John
Marshall in connection with the Quasi-War on France and have
been recognized as valid as well by the late Chief Justice
William Rehnquist while he was serving as a legal advisor to
the Nixon administration during the Vietnam War.
In between those periods, limits on operations that have
been even far more intrusive than the caps on troop levels,
restrictions on increases in new troops, or prohibitions on
continued funding for troops at all by a date certain have been
imposed at other times in our history, including the
Confiscation Acts during the Civil War, which President Lincoln
accepted and did not challenge, restrictions on the location of
troops in the Eastern Hemisphere in 1940, as well as many other
restrictions of this kind. In fact, one searches in vain across
our history for a single case in which the Supreme Court has
invalidated such a measure. And one searches also in vain for a
single instance in which a President has defied a measure once
it has been validly enacted.
But rather than repeat the entirety of that review here, I
just want to step back for a second and note that in
considering a question of this magnitude, we are obviously not
dealing with just a technical legal question in the ordinary
sense. We are dealing with a constitutional question in the
truest sense. The question put before us is one that is really
about how we are constituted as a Government, committed to
self-government and democracy, the rule of law rather than the
rule of men, and the diffusion and separation of powers rather
than the concentration of authority in a single figure.
In that sense, the review of the legal materials need to be
reviewed through that larger lens and from the point of view of
the constitutional structure as a whole. And from that
perspective, I think the question admits of really just one
answer, which is that Congress does possess the power that the
question asks as to whether it possesses.
Under our structure of Government, there is no doubt that a
massive use of force involving more than 100,000 troops
continuing for years at a time would require congressional
sanction at some point. That is true not only because that was
the constitutional plan, but because the text of the
Constitution gives the appropriation power to Congress. No
action could proceed for that long without appropriations
providing for it. The Framers knew this and the Framers
intended it.
The legal question that arises, though, is that when a war
continues for some time, undoubtedly circumstances may change,
and that may lead people to reassess the authority once
willingly given and to reassess the utility of continuing with
the same kind of authorization that was earlier granted gladly.
When that happens, the question is: Can Congress do
anything in response to that change and the reassessment that
is occurring within the country? Or is it to stand by as a
spectator, not by choice but by operation of the constitutional
plan itself?
From that perspective, looked at that way, given all we
know about the Framers' concern about unchecked power, given
all we know about their desire for Congress to have a role in
the authorization of such a massive use of force at the
beginning, I think to ask whether the constitutional plan
permits the Congress, in consideration of the changes that have
occurred, to decide to act upon that reassessment admits of
only one answer. How could it be that our constitutional plan
would not give Congress that power?
Inevitably, answering the question the way that I suggest
it should be answered will raise some to say, ``Well, that
invites micromanagement of the war.'' Whatever the outer
reaches of micromanagement might be, to content that a cap on
troop levels, a prohibition on increases in new troops, or a
prohibition on the use of funds to continue military operations
altogether amounts to micromanagement, when the first serious
reconsideration of authorization given years before
trivializes, in my view, the nature of what Congress is at the
present time contemplating. And I am happy to get into the
details of what maybe those outer limits might be, but I think
it is very important to recognize, given all that we know about
the Framers' understandings and all the precedents that we have
had over 200 years of the Nation's history of engagement in
military conflicts, that it is clear that the measures being
considered, as I understand them, fall well within the
substantial zone of authority that Congress possesses.
Thank you.
[The prepared statement of Mr. Barron appears as a
submission for the record.]
Senator Feingold. Thank you very much, Professor Barron.
Our next witness will be Professor Robert Turner. After
completing two tours of duty in Vietnam, Professor Turner
attended law school at the University of Virginia. Now a
professor at UVA, he co-founded the Center for National
Security Law there and has published several books on the War
Powers Resolution. He also contributed chapters to a law school
casebook on national security law. Professor Turner served as
national security adviser to Senator Robert Griffin in the mid-
1970's and worked at the Pentagon, the White House, and the
State Department during the Reagan administration.
Professor Turner, it is nice to see you again and you may
proceed.
STATEMENT OF ROBERT F. TURNER, CENTER FOR NATIONAL SECURITY
LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE,
VIRGINIA
Mr. Turner. Thank you, Mr. Chairman. I am delighted to be
here. Let me just summarize some of the key points in my rather
extensive written remarks.
First of all, by vesting the executive power in the
President in Article II, Section 1 of the Constitution, the
Founding Fathers gave to that office the general management of
our relations with the external world. I document in my
prepared statement this was the view of George Washington,
James Madison, Thomas Jefferson, Alexander Hamilton, Chief
Justices John Jay and John Marshall, and many others. As
Hamilton noted in his first Pacificus essay in 1793, ``The
power of Congress to declare war was an exception out of the
general executive power vested in the President,'' and, thus,
it was to be, I quote, ``construed strictly.''
Chief Justice John Marshall, a decade later in Marbury v.
Madison, noted the Constitution had vested the President with
important political powers ``in the exercise of which he is to
use his own discretion,'' and the Chief Justice added,
``Whatever opinion may be entertained of the manner in which
executive discretion is used, still there exists, and can
exist, no power to control that discretion.'' And to illustrate
this point, he noted the President's control over the
Department of Foreign Affairs. In the conduct of war and the
conduct of foreign affairs, the President, in fact, is the
decider.
Having acknowledged the President's vast and often
unchecked powers over war and foreign affairs, we must also
recognize that Congress has very important powers in this area,
including the power to raise and support armies, without which
the President has no army to command. It also has control of
appropriations, but decisions involving the conduct of war,
including where to move troops, whether to reinforce troops,
whether to move troops from one hill to another are vested
exclusively in the President. And when Congress tries to
control this power, either directly by statute or by conditions
to appropriations, it becomes a lawbreaker. It violates the
Constitution. The Authorization for the Use of Force in Iraq
clearly was the equivalent to a constitutional declaration of
war. The Bas v. Tingy decision in 1800 has already been
referred to.
Late last June, Justice Stevens in the Hamdan case quoted
Chief Justice Chase's remarks in Ex Parte Milligan, where he
noted, ``Neither can the President in war more than in peace
intrude upon the proper authority of Congress, nor Congress
upon the proper authority of the President. Congress cannot
direct the conduct of campaigns.'' And I would submit that is
what we are talking about here. We are fighting a war, and we
are talking about who can decide how many troops to apply and
so forth. That is core presidential, exclusive authority.
At the core of this authority is this absolute discretion
on how to fight the war with whatever resources Congress has
provided. Now, Congress certainly may refuse to provide new
funds, refuse to provide new troops, refuse to provide new
equipment and so forth. What it cannot do is use that power to
indirectly seize the discretion of the President in how to
fight the war. Legislators may refuse to provide the President
new funds; otherwise, the only way legislators can control the
Commander-in-Chief power is to run for office and be elected
President.
The Chairman noted the precedent of the statute in 1970
that cut off funds to Cambodia. I talk about that and also the
cutoff of funds in the rest of Indochina in my prepared
testimony. And I would conclude with a prudential
consideration. Even if I am wrong, even if Jefferson and John
Marshall are wrong, and Congress has this power, I would urge
you to act very carefully in exercising this power. Have you
considered the consequences of the 1970 legislation? Congress
authorized the use of force to protect Cambodia in 1964.
Congress later cut funds for that purpose. As a result, we
allowed the Communists to take control of Cambodia. As a result
of that, according to the Yale Cambodia Genocide Project, 1.7
million people, 21 percent of the population of that country,
were murdered by the Communists. Four years ago National
Geographic Today had a story about the killing fields that
noted, small children were picked up by their legs and
``batered against trees'' to kill them. That resulted because
Congress prohibited the United States from fulfilling John
Kennedy's pledge that we would ``oppose any foe'' for the cause
of freedom.
What about emboldening the enemy? Let me just close with a
reference to the Beirut situation in 1983.
I followed that closely, and former Marine Commandant P.X.
Kelley and I wrote an article about it in the Washington Post
some years ago. Congress had this same kind of debate, and the
White House said, ``You are endangering our troops.'' And P.X.
Kelley, the Marine Commandant, said, ``You are endangering our
troops.'' And Congress said, ``Oh, no, no. This is free, fair
debate.'' And as a result, the Syrians said, ``The Americans
are short of breath,'' and we intercepted a message from the
terrorists saying, ``If we kill 15 marines, the rest will
leave.'' And on the 23rd of October 1983, a terrorist truck
bomb killed 241 marines, sailors, and soldiers because Congress
had signaled the terrorists that if there are any more
casualties, we can reconsider our vote and cut off the funds.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Turner appears as a
submission for the record.]
Senator Feingold. Thank you, Professor Turner.
Our next witness will be Dr. Louis Fisher, who is a
constitutional law specialist at the Library of Congress. I
have benefited from his writings and his thoughts on many
occasions.
Before joining the Library of Congress, Mr. Fisher spent 36
years at the Congressional Research Service. During his time at
CRS, he served as Research Director of the House Iran-Contra
Committee in 1987. Mr. Fisher literally wrote the book on this
issue, ``Constitutional Conflicts Between Congress and the
President,'' one of more than a dozen books he has written.
Mr. Fisher, it is an honor to have you before the Committee
again, and the floor is yours.
STATEMENT OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW,
LAW LIBRARY, LIBRARY OF CONGRESS, WASHINGTON, D.C.
Mr. Fisher. Thank you very much, Mr. Chairman. The purpose
of my statement is to state that the Constitution not only
gives Congress the authority but the duty and the
responsibility to decide national policy, domestic policy,
foreign policy, national security policy. That is why you are
elected.
The system of Government we have, as has been mentioned
here this morning, is that we believe in the Constitution where
the sovereign power is placed with the people, and they give
you their power temporarily to discharge. And that is the
system we have. It is a democratic, small-R republican system.
The power is with the people, and you can revisit legislation
any time you like. If you do not meet their needs, you may not
be around very long. So you are a temporary custodian. You are
a temporary custodian of the Constitution which, very
importantly, includes the checks and balance system and the
separation of powers system. We have that because the Framers
did not trust in human nature. They were afraid of any
concentration of power being abused. That is why we have our
system.
Now, when you passed the Iraq resolution in October 2002,
you did not sign off and say the rest is for the President. Any
statute that you pass, you have a duty to revisit it and
recalibrate in light of new information. That is just the duty
of the legislative branch. You have few restrictions on what
you can do. The restrictions that exist are the kind of
restrictions no one is thinking about, up this street but not
down that street. I do not have any grounds for believing that
the President has any special expertise or better judgment on
whether to continue a war than the elected Members of
Congress.The Framers put their trust in the deliberative
process.
You can look at Article I and Article II, and Article I
obviously gives the lion's share of the war power to Congress.
My statement explains why that is so; that is, the Framers
looked at the British models--Blackstone and John Locke--and
they would have given the executive all the power over war and
foreign affairs. None of those war prerogatives are given
solely to the President of the United States. They are either
given expressly to Congress, or they are shared between the
President and the Senate.
When you look at the Framers, their view of history was
that executives over time, in their search for fame and glory,
got nations into wars that were ruinous to the people and
ruinous to the Treasury. So that is why the power of initiating
war was placed in Congress, and the President has certain
powers of a defensive nature to repel sudden attacks.
Now, about the Commander-in-Chief Clause. It is an
important clause but not the way it is read today: one, it
affirms unity of command. The unity of command means that the
President is in charge of troops, but those troops can be
controlled by Congress. The second very important part of the
Commander-in-Chief Clause is civilian supremacy. The same duty
that commanders have to the President, the President has to the
elected representatives. So the Commander-in-Chief Clause does
not get anyone anywhere.
I mention in my paper, as others do, contemporary statutory
restrictions. Now, when the elected Members of Congress decide
that a war has declined in use or value and you want to revisit
it, you can place various conditions on appropriations, change
legislative language. That is up to you. You may decide in
doing that that you want to move U.S. troops to a more secure
location. So there is no issue here about not protecting our
troops.
The key question to me is for Congress to determine that
the continued use of military force and a military commitment
is in the Nation's interest. That is the core question. Once
you decide that, if you decide it is not in the national
interest, you certainly do not want to continue putting U.S.
troops in harm's way.
I don't think when you are trying to decide that question
that there is any help by saying that if you express an
independent view, you are somehow emboldening the enemy.
I want to end--a lot of people talk about the Steel Seizure
case and the three categories and so forth. They miss what I
think is Robert Jackson's view at the end of his decision where
he says--and this is the constitutional system we are talking
about. He says, ``With all its defects, delays, and
inconveniences, men have discovered no technique for long
preserving free government except that the executive be under
the law and that the law be made by parliamentary
deliberation.''
Thank you.
[The prepared statement of Mr. Fisher appears as a
submission for the record.]
Senator Feingold. Thank you so much, Mr. Fisher.
Our next witness will be Bradford Berenson. Mr. Berenson
graduated from the Harvard Law School and clerked for Judge
Silberman on the D.C. Circuit and Justice Kennedy on the United
States Supreme Court. Mr. Berenson served as associate counsel
to President George W. Bush from 2001 to 2003, where he focused
on the relationship between the Congress and the executive. He
is now a partner at Sidley and Austin.
Mr. Berenson, thank you for making time to testify today.
You may proceed.
STATEMENT OF BRADFORD BERENSON, PARTNER, SIDLEY AUSTIN LLP,
WASHINGTON, D.C.
Mr. Berenson. Thank you, Mr. Chairman. I appreciate the
opportunity. I certainly think this is a valuable and important
debate, nothing at all illegitimate or disreputable about it,
and the questions are indeed very serious and, as Professor
Barron said, very deep in that they address our structural
Constitution.
I am mindful of your admonition that we are here today to
discuss law rather than policy, and that the question whether
Congress should exercise whatever power it has is not the
subject of the present hearing. I do, however, want to echo at
the outset one of Professor Turner's observations, which is
that whatever constitutional authority the Congress does have
to terminate a war, there are very important prudential
considerations that need to be taken into account before it is
exercised, even by those who feel most strongly that the war is
a mistake.
I would suggest that for a variety of institutional and
political reasons, both domestically and abroad, the country is
best off when the two branches are closely cooperating and
consulting with one another on these matters and confrontations
are not forced through legislation.
That said, I think the constitutional scheme does give
Congress broad authority to terminate a war. As I see it, there
are three basic spheres: there is a sphere of exclusive
congressional authority in the area of warmaking; a sphere of
exclusive executive authority in the area of warmaking; and
then by far the broadest and, in some ways, the most
significant sphere is the sphere, as Senator Specter suggested,
where the powers are shared in a particular way.
Broadly speaking, the exclusive powers of Congress and the
President are those that are enumerated in the Constitution, at
least in my view. So Congress has the exclusive authority to
declare war, to raise and fund the armies, and to prescribe
rules for how to regulate and govern the conduct of those
forces. But the President's power as Commander-in-Chief is
likewise exclusive, and any congressional statute that would
usurp his command over our military forces would, in my view,
be unconstitutional. The Supreme Court in Ex Parte Milligan,
Chief Justice Chase, recognized Congress' broad power to
regulate the conduct of warfare, ``except such as interferes
with the command of the forces and conduct of campaigns.'' That
power and duty belong to the President as Commander-in-Chief.
The outer boundaries of the Commander-in-Chief power are
quite difficult to discern and raise a lot of difficult
questions, as Professor Barron suggested. But, broadly
speaking, I think the division is between tactics and military
strategy on the one hand and broad questions of national policy
on the other. The closer Congress gets to regulating the
disposition of troops and the way in which they may engage the
enemy, the closer it gets to trenching on the President's power
to command with that unity that Dr. Fisher described.
On the other hand, the question of where in the world our
troops may fight and who should be treated as an enemy of the
United States and just how many of our national resources
should be dedicated to that kind of a conflict I think is a
proper subject for congressional regulation through the
Spending Power and the Necessary and Proper Clause.
It is important to recognize, though, that even in enacting
a statute such as the one that Chairman Feingold suggested he
is going to introduce shortly, there may be difficult questions
of application. I have not seen the details of the proposal, of
course, but in my judgment, a statute which says as of 6 months
from the date of enactment the United States shall no longer be
engaged in hostilities in Iraq is presumptively constitutional.
That would be, if it could be passed, presumably over the
President's veto, a constitutional statute and proper exercise
of Congress's authority to set this broad policy. It would be
constitutional on its face.
That does not mean, however, that it would be
constitutional in every application. The President's Commander-
in-Chief powers, in my view, do give to him certain emergency
authorities--to repel a sudden attack, to protect our troops in
the field--that cannot be taken away by Congress even through a
presumptively and facially constitutional statute. So in
respect of the bill that Chairman Feingold proposes to
introduce, if on the last day of that 6-month period our troops
were attacked in force, and in order to protect them and to
effect the redeployment safely, the President had to continue
to order them to fight for a period of days or weeks after the
6-month deadline, I think the debate would be ill-served by
suggesting that that is somehow an unlawful action by him. I
think we do need to recognize that there is play in the joints
and there are reserves of presidential constitutional authority
that exist even in the shadow of constitutional legislation of
that kind.
Thank you very much.
[The prepared statement of Mr. Berenson appears as a
submission for the record.]
Senator Feingold. Thank you so much for your balanced
testimony, and now our final witness is Professor Walter
Dellinger. A graduate of Yale Law School, Professor Dellinger
clerked for Justice Hugo Black on the United States Supreme
Court. He headed the Office of Legal Counsel at the Department
of Justice from 1993 to 1996. During this time he advised
President Clinton on the executive's authority to deploy U.S.
forces in Haiti and Bosnia. Professor Dellinger served as the
Acting Solicitor General of the United States from 1996 to
1997, where he argued nine cases before the Supreme Court in a
single term. He then joined the faculty of the Duke University
School of Law and is also head of the Appellate Practice Group
of the Washington office of O'Melveny and Myers.
Professor Dellinger, thank you as well for joining us
today, and you may proceed.
STATEMENT OF WALTER DELLINGER, DOUGLAS B. MAGGS PROFESSOR OF
LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH CAROLINA, AND
FORMER ACTING SOLICITOR GENERAL OF THE UNITED STATES
Mr. Dellinger. Mr. Chairman and members of the Committee,
thank you. Mr. Berenson and I both bring an executive branch
perspective to these discussions. We served in administrations
of different parties, he in the White House and I in the
Department of Justice. But I think we both recognize the limits
that Congress may place on the President's use of U.S. forces,
and we both recognize that there may be urgent exceptions to
those limits.
The President does have the authority to command the
troops, and I also believe that a President has a great deal of
authority, when Congress is silent, to act in the national
defense and in behalf of national security. I think as a legal
officer of the Government, I would be hard pressed to find that
a presidential action taken in good faith to protect U.S.
national security was ultra vires, was simply beyond his
authority.
The situation, however, is quite different when Congress
has acted. When Congress has acted using its ample authorities
set out at length in Article I of the Constitution, then the
question is whether the act of Congress is constitutional or
not. In this circumstance, the President as Commander-in-Chief
I think has the authority to choose the sub-commanders to
determine the tactics, to decide how to carry out the tasks to
which the military has been assigned. But it is ultimately
Congress that decides the size, scope, and duration of the use
of military force, and this has been recognized by
administrations of both political parties throughout our time.
Robert Jackson recognized that Congress could validly say
no U.S. troops may be stationed outside the Western Hemisphere,
as they had in 1940 prior to Pearl Harbor.
Assistant Attorney General William Rehnquist argued very
forcefully that Congress does not have simply an all- or-
nothing choice to declare war; Congress may limit, validly
limit the President's use of force.
Now, here in this circumstance, the question is what powers
a President should use, and I would like to note that it is
not, by any means, clear to me that the appropriations power is
what Congress may necessarily need to resort to. Congress may
simply, in my view, directly legislate under the Necessary and
Proper Clause in light of its other authorities without using
the appropriations power. Indeed, I think if it tried to
interfere with actual direct Commander-in-Chief exercises of
the true functions of the Commander through the appropriations
power, that would not be constitutional. But with or without
the appropriations power, Congress can place limits upon the
use of U.S. forces.
Now, I think it is important to recognize, however, that
Senator Feingold's proposal is not one that, as I read it, cuts
off funds to anyone. It is a proposal that calls for
redeployment. It cites the spending authority, though I think
it could also do so directly, but there is a long tradition of
using the appropriations authority.
Under that proposal, as I read it, Mr. Chairman, there
would not be one penny less for salary of the troops. There
would not be one penny less for benefits of the troops. There
would not be one penny less for weapons or ammunition. There
would not be one penny less for supplies or support. Those
troops would simply be redeployed to other areas where the
armed forces are utilized. And that, it seems to me, is fully
within the authority of Congress to do.
Finally, the prudential questions that are raised about
whether it has an adverse effect on morale when the President
and the Congress take different views. When the President
intends to use or to increase or enhance the use of military
force, and Congress is of the view that that is not within the
national interest, there is a discord and a dissonance. But you
first have to ask who has the primary constitutional authority.
If it is in the President to determine where to go to war and
how to go to war and how long to go to war, then Congress--we
put the question to Congress. Why are you undercutting that?
But if it is true, as I think it is, that the Constitution
gives this fundamental choice to the Congress of the United
States, then it is appropriate to ask what justification would
a President have for using forces in circumstances where it is
known that the Congress elected by the people is opposed to
that use of force.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Dellinger appears as a
submission for the record.]
Senator Feingold. Thank you, to you and the whole panel.
The panel did just an excellent job and was very respectful of
the time limits and you got right to the point of the hearing,
to the point where a couple of the questions I was going to ask
have already been clearly answered on the record.
We will now turn to questions for the witnesses. Each
member of the Committee will have 5 minutes for the first round
of questions. Before I begin, I would like to place the
following items in the record of the hearing: a letter from
Professor Dellinger dated January 17, 2007; a Constitution
Project reported titled, ``Deciding to Use Force Abroad: War
Powers in a System of Checks and Balances''; and two
Congressional Research Service reports--one titled
``Congressional Use of Funding Cutoffs Since 1970 Involving
U.S. Military Forces in Overseas Deployments,'' and another
titled ``Congressional Restrictions on U.S. Military Operations
in Vietnam, Cambodia, Laos, Somalia, and Kosovo: Funding and
Non-Funding Approaches.'' Both of those are dated January 16,
2007. And also a statement from the Chairman of the Committee,
Senator Leahy. Without objection, they will be included in the
record.
Let me begin with my round. Mr. Fisher, why did the Framers
believe it was so important to place the purse and the sword in
the hands of different branches of Government?
Mr. Fisher. Well, the quote you had from James Madison said
that the person who is to decide the scope of the operation,
the Commander-in-Chief, cannot be the same one to decide
whether to continue the operation. That is a separate judgment
made by Congress. So Congress always had control up to--the
first time we had an exception was 1950 with the Korean War,
the first time a President went to war without coming to
Congress. So for 160 years, in the offensive use of troops, all
Presidents, all courts, all Congresses understood that was a
legislative judgment, not for the President. Very limited
powers. Only in the last 50 years have we gotten the notion
that Presidents can go to war on their own and bypass Congress
and go to the UN Security Council or go to NATO members.
Senator Feingold. That seems to suggest that the Congress
does not just have the right but the responsibility to provide
a check on the executive branch and to use its power to fix the
failed Iraq policy, doesn't it?
Mr. Fisher. It has the responsibility, and you are the
custodian of the public power. You are the ones to make sure
that when the people vote--that is why we have elections. You
are the one to make sure that that public will is respected and
carried out. The power is much more in Congress in protecting
the democratic system than it is on the President.
Senator Feingold. Thank you.
Professor Dellinger, you have in the past been a strong
proponent of presidential power. For example, as you explained
in your testimony, at the Justice Department you argued that
Congress did not have the power under the Constitution to
prevent the President from putting U.S. troops under United
Nations command. Yet here today you have testified that you
believe Congress has any number of options legally available to
it to end or constrain the Iraq war and that the President
would be required to comply if Congress took that action. Why
does someone like you who has worked in the executive branch
and who has advocated for presidential authority in related
areas nonetheless believe that Congress can cut off funds for
the Iraq war or otherwise limit the scope and duration of the
war?
Mr. Dellinger. Mr. Chairman, I do believe that the
Commander-in-Chief Clause of the Constitution confers
authorities on the President with which the Congress may not
interfere, for example, the selection of sub-commanders or
those whom the President will put in charge of the troops, I do
not think Congress has any power to undercut that. To say that
funds are appropriated but only if General Smith is placed in
command by the President would not be a constitutional use of
Congress' authority.
But I think throughout our history we have recognized that
Congress may place limitations on the duration and scope. For
example, I issued the opinion that the President did have the
authority to send 20,000 U.S. troops into Haiti. But we
acknowledged that we were fully complying with a set of
congressional limitations that the Congress has passed that
were preconditions to the use and deployment of U.S. forces
into Haiti. And we also recognized in the Haiti opinion--it is
an opinion of the Office of Legal Counsel, and I believe it is
cited in some of the testimony. We also said in that opinion
that the President's authority to deploy U.S. forces around the
world without advance congressional authorization assumes the
absence of limits imposed by Congress. And there is a large
constitutional issue over the fact that a President, I think,
has large inherent powers, but once Congress has acted, then
the scope of the President's power is quite different. And then
the only question is: Is the act of Congress unconstitutional?
Senator Feingold. Thank you.
Mr. Fisher, it has been discussed already that there are a
number of historical examples in which Congress has wielded its
power to end war by cutting off funds and thereby bringing
troops home, including the Vietnam War. In fact, I understand
there were a number of efforts to end the Vietnam War before
the legislation that was ultimately successful in terminating
funding became law in 1973.
Can you explain a little bit more the steps that Congress
took in the context of the Vietnam War and the ultimate
outcome?
Mr. Fisher. Well, the cutoff in funds, of course, came in
1973. It was interesting, I thought, in 1971 there was what was
called the Mansfield amendment. It placed limitations on what
could be done in Southeast Asia. It went to President Nixon,
and he signed it, and in the famous signing statement we hear
about, he says, ``That is not the policy of this
administration.'' Remarkably, it got into court a year later,
and a Federal judge said, ``No. That is the policy of the
United States.'' It is in a public law. The policy of the
United States is what is in the statute, not in what the
President says.
So even there, in the middle of the Vietnam years, Federal
courts recognized that Congress by statute, when it is signed
into law, can limit the President.
Senator Feingold. Thank you very much.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
There have been several mentions in the record that the
issue of congressional debate is undercutting the troops. I do
not think anybody has gone quite so far as to say that we are
aiding and abetting the enemy, but that issue has been raised.
I am pleased to note that President Bush himself in the
State of the Union said, ``Such debates are essential when a
great democracy faces great questions.'' And Professor
Dellinger raises the issue as to whether there is an adverse
effect on the morale of the troops.
There have been some interesting polls taken as to how the
military personnel feel about the war. And on December 29,
2006, just exactly a month ago, a poll done by the Military
Times showed that only 35 percent of the military members
polled this year approved of the way President Bush is handling
the war, while 42 percent disapproved. Forty-one percent of the
military said the U.S. should have gone to war in Iraq, down
from 65 percent in 2003. That raises a question in my mind as
to whether the military does not approve of questions being
raised by Congress and a recognition that there are open
questions here which have to be decided in a democracy.
The election results are a very forceful statement as to
how the people of America feel. I think there is no doubt that
those results reflected dissatisfaction with the war in Iraq.
Certainly that was my sense in traveling through Pennsylvania
and other places, and my colleagues in the Congress have
expressed a similar point of view.
Professor Turner, you have been the most explicit advocate
of presidential authority. Do you find any problem with the
kind of debate we are having or with the resolutions which have
been introduced even by the President's harshest critics,
resolutions of disapproval?
Mr. Turner. It is a very good question. As a constitutional
matter, obviously the debate is legitimate. You know, I do not
think you can argue that.
There is an important prudential issue here, and that is--
and I used to teach U.S. foreign policy, and I teach a seminar
still today on War and Peace, so I am getting a little bit out
of--
Senator Specter. Come to the question. I only have 5
minutes.
Mr. Turner. Yes, sir. The concern is--I can tell you as a
soldier in Vietnam, there were a lot of morale problems because
of the criticism back home. The concern is our enemies know
they cannot beat us militarily. Their biggest hope is we will
lose our will, and the concern is, as we saw, I think, in
Beirut, that if they see Congress threatening to pull the plug,
they are going to say we have to kill more Americans to
encourage Congress to do that. And I think that is exactly what
happened in Beirut.
Senator Specter. So you think it does hurt morale.
Mr. Turner. I think it does hurt morale, but that may not
overcome the positive value. This is something you have to
judge, you know, the contribution of the debate, is it going to
change the--
Senator Specter. Well, my judgment is that it is the price
of democracy.
Mr. Turner. That may well be true, sir.
Senator Specter. That there is no doubt that the Congress
at least has colorable authority, if not 50 percent authority,
or shared authority to some extent.
Professor Dellinger, I see you waving your hand, but I have
another question for you, and I want to approach a little
different subject. Where the electorate has spoken forcefully,
or at least my interpretation of the vote in the election was a
very positive repudiation of the Iraq policy, and we live in a
representative democracy. We have a Republic and we are going
to keep it, notwithstanding Frankel's interdiction.
We also, I think, observe a principle that leadership
sometimes requires disagreeing with public opinion and taking a
different stand, that that is the cost of leadership. Perhaps
President Truman is the best example of that.
And my question to you is: Where the electorate has spoken
and there is so much sentiment in Congress, is there a heavier
burden on the President to establish the wisdom and efficacy
and superiority of his program than if the electorate had not
spoken and Congress has not expressed itself?
Mr. Dellinger. Senator Specter, I do believe that the
Constitution is structured so that the judgment of the people
can play a role, and here the country has elected a third of
the Senate and all of the House since the last time it chose a
President, so that they do reflect a fresher judgment of the
people.
You reference my raising the question about morale with
this debate, and I did want to make clear that I believe the
debate is essential--
Senator Specter. Come to the question of morale after you
answer my question. Is there a heavier burden on the
President--
Mr. Dellinger. Yes, I do think there is a burden when the
country has spoken on the President--
Senator Specter. Is there a heavier burden on the President
to show the efficacy of his program in the face of this kind of
popular and congressional disapproval?
Mr. Dellinger. I think the answer to that question is
clearly yes with respect to both because we want the use of
U.S. force to reflect a consensus.
Now, the debate is essential in that once we are engaged in
hostilities, I think it is generally accepted that Congress has
the authority to limit or end those hostilities. That means
there has to be a discussion about whether to do that. And if
you could not have that discussion, it would be a system set up
for a perpetual war, because you could never discuss whether
and how to end it. And I would think that those who serve are
entitled to expect that there is a continuing assessment of
whether their service in that theater of war is indeed vital to
the national interest. They would hope and expect that that
assessment would go on and would not be cut off simply when the
war had started.
Senator Feingold. Thank you, Professor Dellinger. Thank
you, Senator Specter.
Now I would like to turn to somebody who has frequently and
successfully dealt with these difficult issues throughout his
career.
Senator Kennedy.
Senator Kennedy. Thank you. Thank you, Senator Feingold,
for chairing these enormously important hearings today.
Let me ask the panel, Iran's nuclear ambitions and support
for international terrorism pose a threat to the stability in
the Middle East and to our national security, and the question
is how we respond to this challenge. The President said on
January 10th that Iran has provided material support for
attacks on American troops and that we would disrupt the
attacks and destroy their networks. The next day we raided an
Iranian Government office in Iraq.
Last week, President Bush authorized U.S. forces in Iraq to
kill or capture Iranian operatives inside Iraq. Yesterday, the
President further raised the temperature by saying if Iran
escalates its military actions in Iraq to the detriment of our
troops or innocent Iraqi people, we will respond firmly.
The U.S. recently sent an additional aircraft carrier
battle group to the Gulf Region. This morning, the Armed
Services Committee is holding a hearing on the nomination of
Admiral Fallon, who would become the first naval officer to
hold the Central Command.
Some have read this activity as preparation for military
action against Iran. I certainly hope that is not the case.
The question, just quickly through the panel: Is the
President required to seek authorization from Congress before
using military force against Iran?
Mr. Fisher. Let me give it a try. I think if there is some
action that is a threat to U.S. soldiers, I think a President
has the power to repel sudden attacks to protect U.S. troops.
Otherwise, if it goes beyond isolated incidents like that, I
think you are running into the purpose of the Iraq resolution,
which when it came up to the Congress was of such a broad
nature, it could have covered the whole Middle East, and
Congress amended it to make sure it applied only to Iraq. So I
think by statute, by legislative policy, you have confined the
President to Iraq.
Senator Kennedy. I am interested either in another comment
on that or what actions can Congress take now to ensure the
President does not take us into war in Iran without
congressional authorization. Professor Barron, maybe you could
answer either both of them or take the second part.
Mr. Barron. I think the question of whether the President
could right now initiate any actions against Iran, I think the
proper way to think about it is what authority does he have
under the current Iraq authorization statute which would
require some close consideration.
There is some writing on this from, again, William
Rehnquist when he served President Nixon with respect to the
President's inherent power to go into Cambodia when there was
no statutory limitation imposed at the time. I think it was
quite clear under Rehnquist's view, though, that a statutory
limitation on the exercise of such authority would be
constitutionally valid. So I think the legal question then
comes to there is no doubt Congress could restrict him from
going and widening the war, not just in terms of the amount of
troops used but in the geographic area covered, and the only
issue is whether Congress has, in effect, already done so by
virtue of the limitations and bounds of the Authorization to
Use Military Force in Iraq that it has already enacted.
Senator Kennedy. Yes, Professor Turner?
Mr. Turner. Senator, let me just make a nuanced point on
this. John Hart Ely, in his War and Responsibility, made the
point that after Congress declared war against Germany, FDR did
not need a new declaration of war to go into North Africa after
the German forces. Going into Cambodia I think was perfectly
legal because the North Vietnamese had taken over the whole
border area of Cambodia, and so there are difficult lines to
draw here, but I could see a situation in which Iran became
involved in the Iraq war where the President would be able to
use force. I hope he does not, and I think in terms of
launching a major war against Iran he should get and would need
an AUMF for Iran. But there is some area in there where I think
he could act.
Senator Kennedy. Well, I want to just hear from others
here. If Congress passed legislation requiring the President to
seek authorization from Congress before using military force
against Iran, would the President be obliged to seek such
authorization before launching military action? I will add that
to the pot, too, because I am going to run out of time here.
Mr. Berenson. Senator Kennedy, I think the questions that
you are posing fall into the sphere that I spoke about before
as the sphere of shared powers. And it is important to
recognize that for very important institutional reasons, the
President is the first mover and the prime mover in this area
of shared powers. That has to do with the fact that unlike
Congress, which needs to go through an often time- consuming
and difficult legislative process, a process that can sometimes
be stymied, the President has the ability to receive
information in real time to act to protect the national
security.
So the President through the Vesting Clause, through his
executive authority, in the absence of legislation to the
contrary by the Congress, I think unquestionably would have
authority to engage Iran in hostilities. Whether in defense of
our forces inside the borders of Iraq, or if he decided that we
needed to do something to address Iran's nuclear facilities, I
do not think he would be acting outside the scope of his
constitutional authority.
That said, for major military actions most Presidents have
recognized the importance of coming to Congress as a political
and practical matter. It is certainly unwise, albeit not
unconstitutional, to try to engage in large-scale hostilities
or engage a new enemy in warfare without public support, and
the best way to ensure that at the outset is, of course, to
come to Congress.
Senator Kennedy. My time, Mr. Chairman--Mr. Dellinger?
Mr. Dellinger. Yes, Senator Kennedy, briefly. I agree with
Mr. Berenson's statement. I believe that the President does
have the authority to introduce U.S. troops into situations of
hostilities, including in Iran, in the absence of congressional
limitation as long as the anticipated scope and duration does
not amount to a war. I do not believe he has the authority to
send 500,000 troops into Iran, but he does have the authority
to deploy U.S. forces in hostilities. And, indeed, the War
Powers Resolution recognized this. It says when the President
introduces troops into situations of hostilities in the absence
of congressional authorization, he has to report and take other
steps. But it does recognize that.
That said, it is also clear that Congress can impose
limits, either before or after the fact, on the size, scope,
and duration of that. But I do believe that is a consistent
executive branch position that the President has the authority
to deploy U.S. forces into hostilities when Congress has not
spoken to the question.
Senator Kennedy. Thank you.
Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator Kennedy.
Senator Hatch.
Senator Hatch. This has been an extremely interesting panel
to me, and I think all of you have done rather well. I agree
with Dr. Fisher that Congress has almost unlimited powers under
our Constitution to do just about anything it wants if it can,
and that is a very difficult thing for Congress sometimes.
But let's come back to the Iran situation. If it is brought
to the attention of the President that Iran is sending
materials, weapons, IEDs, and a lot of other things to kill our
soldiers over there in Iraq, even if the Congress of the United
States says we cannot go to war with Iran, would the President
have a right to remedy that situation? Mr. Turner, Professor
Turner?
Mr. Turner. In Marbury v. Madison, John Marshall said that
``an act of the legislature repugnant to the Constitution is
void''. The conduct of military operations is clearly an
exclusive presidential power. That is why I am arguing that
things like moving troops around, bringing in reinforcements,
that is a presidential decision that cannot be placed else
where. Trying to tie the President's hands in the conduct of
the operation, that is an unconstitutional act, it is void, and
it has no effect.
Senator Hatch. Has any court ever held--has the Supreme
Court ever held that?
Mr. Turner. That is an interesting question.
Senator Hatch. I am interested in Professor Barron's
comments about the Civil War, Lincoln, and some of these other
instances where the President acquiesced to what the Congress
had done, but was it tested before the Supreme Court?
Mr. Turner. There are so few cases--
Senator Hatch. If it was tested, would the decision have
gone otherwise?
Mr. Turner. There are so few cases where Congress has tried
to do this, I doubt it has been tested. But it--
Senator Hatch. I do not know of any test, but maybe there
has been. Professor Berenson.
Mr. Berenson. In the Prize cases, which arose in the
context of the Civil War, the Supreme Court recognized that
President Lincoln had the power and, indeed, the obligation to
respond to the Confederacy's rebellion militarily.
Senator Hatch. I agree that our courts like the Prize
cases. They back up the President. Now, Professor Barron has
said Congress could do almost anything it wants, and so has
Professor Fisher. I am not quite as sure as they are.
Mr. Barron. You are right that the Confiscation Acts that
are referred to by President Lincoln did not reach the Supreme
Court of the United States. There was a huge issue as to
whether he would veto them on grounds that it violated the
Commander-in-Chief power, and though he did assert the veto
power, he decided not to assert the Commander-in-Chief
objection, apparently because he himself believed it was not
ultimately unconstitutional to act. But you are right to say
that we do not have a clear decision on it. The best we have,
as far as the Supreme Court's own view on the enforceability of
a limit on the use of force, is the Little v. Barreme case, in
which there was an issue from a military commander as to the
ability to seize a ship in foreign waters. The claim of the
commander was that he was acting on the direct orders of the
President as Commander-in-Chief; and notwithstanding that,
Chief Justice Marshall concluded that order was legally invalid
because it was beyond the scope of the authorization as limited
by Congress as to which ships could be seized.
So I think that is the best we have got on it, and I think
that just on the other side I would say there is certainly no
case we have of a President either defying such a restriction
or the Supreme Court upholding such a restriction, once defied.
Senator Hatch. Professor Turner?
Mr. Turner. Yes, it is very important to distinguish
between internal and external affairs; but also, Congress does
under Article I, Section 8, have certain expressed grants of
powers that are exceptions. One of those is the right to ``make
rules governing captures on land and water.'' So the Barreme
case involved an area where Congress had expressed power, and I
would not apply that to cases involving the President's general
Commander-in-Chief power.
Mr. Berenson. I agree with Professor Turner's reading of
the Barreme case, and the other thing I would point out is
that, although we do not have a direct precedent on point in
relation to the conduct of military operations, we do have
precedents in analogous circumstances like Myers, in which the
Supreme Court has held that congressional legislation which
intruded upon a presidential power was invalid--in that case,
the President's power to remove Cabinet officers, which is not
granted to him explicitly in the Constitution, but is instead
an implicit adjunct to his appointment power.
Senator Hatch. Well, I think that is one of the points I am
trying to make.
Dr. Fisher and then Professor Dellinger, my time is about
up, but we will listen to both of you.
Mr. Fisher. Yes, I think on the Civil War issue, that was
the greatest--
Senator Hatch. One of the things about you, Dr. Fisher, I
have almost got the impression that you think there is nothing
Congress cannot do. I do not quite agree with that.
Mr. Fisher. Oh, no. I think there are some things that
Congress cannot do.
Senator Hatch. I hope so.
Mr. Fisher. But on the Civil War precedents that people
spoke about here, that was the greatest emergency we ever
faced, and Lincoln did take, which I think is true, certain
emergency powers. He recognized that he had gone outside his
own powers and exercised those belonging to Congress, and he
came to Congress to get authority. On the Prize cases, I think
it is very important to remember that what Justice Grier upheld
there were presidential powers in a domestic emergency, not
going to war against another country. Even the attorney for the
White House, Richard Henry Dana, Jr., said exactly the same
thing. Going to war outside the United States is a
congressional power.
Senator Hatch. Okay. Professor Dellinger, do you care to
comment?
Mr. Dellinger. Yes. Senator Hatch, the October 16, 2002,
resolution--
Senator Hatch. Now, I might add, knowing you as well as I
do, you have not argued really forcefully for the President so
far. I would like to hear it a little bit stronger.
[Laughter.]
Senator Hatch. I am just kidding. Go ahead. Sorry to
interrupt.
Protestor. He is under oath.
Senator Hatch. He is under oath. That is a good comment.
Senator Feingold. Mr. Dellinger.
Mr. Dellinger. The resolution of 2002 is quite broad, quite
broadly worded, and if the President determined that Iran was
facilitating or making the job being done in Iraq more
difficult or facilitating it, that resolution has fairly ample
authority. It is not geographically limited, and the President
is authorized to use--
Senator Hatch. What if it did not? What if it did not have
broad authority, that resolution?
Mr. Dellinger. I think the President has inherent authority
to act in the absence of congressional limitation, and here I
think even you could--the President could invoke the 2002
authorization if the use of force against Iran were necessary
to facilitate the defense against the continuing threat posed
by Iraq. The resolution, rightly or wrongly, I just would have
to note that it is quite unrestricted in the authorization it
gives the President, which is why I think it is appropriate for
the Chairman to say it is time for us to revisit the authority
that is conferred and to reconsider it now. But it would be a
basis a President can cite.
Senator Hatch. Thank you, Professor.
Senator Feingold. Thank you, Senator Hatch.
Senator Durbin.
Senator Durbin. Thank you very much. And so most of this
debate has been over how Congress can legally, constitutionally
limit the authority of a President to wage a war once the war
is underway. The resolution, which Professor Dellinger and
others have alluded to, which passed in October of 2002,
premised the actions of the President on three things: the
presence of weapons of mass destruction, which did not exist;
and the activities of Saddam Hussein in repressing the people
of his country and threatening his neighbors; and as we all
know, Saddam Hussein no longer exists.
So let me ask you, when you read this resolution today, is
there anyone among you who believes that what we are currently
doing in Iraq is outside the scope of power and authority
granted to the President?
Mr. Barron. Senator Durbin, the way I think I would answer
that is that even if reading the terms of it would lead one to
conclude, totally reasonably, that what is happening now is
beyond what was contemplated there and is outside that
authority, the fact of the continued appropriations on behalf
of the action to this date couldn't be ignored in interpreting
how best to understand that statute now. So I do not think
there is a legal problem with what is now happening as far as
the authority to be there, given the appropriations that
support it. But that, of course, I think is partly what has
prompted the hearing, which is that so long as the
appropriations continue, in light of an authorization which
seems to have actually contemplated quite different
circumstances, there is the suggestion that nothing has really
changed, even though it may be that many people in the Congress
and the country as a whole believe quite a lot has changed,
raising the legal question of what can Congress do then to
revisit those terms in light of its new understandings.
Senator Durbin. So are you suggesting that our
appropriations process is, in fact, de facto a reauthorization
of the President's authority?
Mr. Barron. I think any executive branch lawyer would
advise the President to that effect, and I think it would be a
quite legitimate argument and one that has precedent as to how
other executive branch administrations have interpreted
appropriations authority.
Senator Durbin. Any other thoughts, Dr. Turner?
Mr. Turner. Senator, the Supreme Court has said that
appropriations can provide authority. I think it was in the
Prize cases they talked about there is no declaration of war.
That may not have been--but also in the AUMF in October of
2002, there are references to promoting democracy and the rule
of law, I think references to human rights. I may be wrong on
that, but my recollection is at least in the whereas clauses,
it is not just WMD but it is also the welfare of the people.
And I would think that it would be a reasonable--that is, like
in domestic law, there is no duty to rescue, but there is a
duty, once you try to rescue through a competent job and in the
middle of the operation, going in there to help the people of
Iraq, which was obviously our goal, you know, to say now we are
going to walk away, we have knocked all the beehives down in
the room and we are going to go home and let you guys sort it
out, I think, you know, the President does have some area here.
If Congress were to say you cannot do this in a
constitutionally legitimate way, that would control. But I do
not think it can do that if it is interfering with the actual
command decisions like reinforcing troops. That to me is so
core Commander-in-Chief that Congress cannot touch it. You can
deny him new troops and new money.
Senator Durbin. Mr. Fisher.
Mr. Fisher. On appropriations, in the Vietnam years, there
were many cases, and at first judges said, well, Congress
appropriated money. It looks like they endorsed the policy.
Later, judges understood that because you fund a program maybe
out of pity or piety, that is not an endorsement of the
program, and they were instructed that policy is made in the
authorization committee, not the appropriation committee. So I
would raise some questions about that.
I think on the Iraq resolution of 2002, whatever was
assumed at the time based on the information, you are fully
empowered now, based on your own understanding today, as to how
to change and restrict military action any way you want to. You
are not locked in by 2002.
Senator Durbin. Let me give you one example: Somalia, a
controversial situation, leading to the Defense Appropriations
Act of 1995, fiscal year 1995. It prohibited the use of funds
for the continuous presence of U.S. forces in Somalia except
for the protection of U.S. personnel after a certain date. Is
there anyone here who believes that that was outside the scope
of the constitutional authority which Congress has?
Mr. Fisher. Just one point on that. That was a fine statute
because it said not only no more appropriations, but that you
do not go back in until you come back to Congress and get
authorization. That is the Somalia statute.
Senator Durbin. Is there anyone here who believes that that
was inappropriate?
[No response.]
Senator Durbin. Well, it seems--I do not know how much time
I have left. Very little, I am sure. It seems to me that one of
the elements here that is at play that we have not spoken about
is a very different view of the Presidency and the White House.
And I assume most White Houses have a different view than the
Congress does. But Mr. Yoo, for example, in his famous memo now
about executive power talked about the plenary powers of the
President. Does anyone here subscribe to his views on the
plenary powers of the President in the midst of war?
[Laughter.]
Mr. Turner. I would rather not just endorse Professor Yoo,
but it is very clear the President does have some plenary
powers. Military command is a plenary power, and it is also
clear, I think, at least if you accept all three Federalist
authors--along with Washington, Jefferson, Marshall--all of
them argued that by granting the executive power, as that term
was understood by Locke and Montesquieu and Blackstone, it
included the general control of the Nation's external
intercourse. And, for example, the Supreme Court has said in
Curtiss-Wright, ``Into the field of negotiations the Senate
cannot intrude. Congress itself is powerless to invade it.''
So to the extent you are passing laws telling the President
what he can or cannot negotiate or telling him how to fight a
war--
Senator Durbin. How about the duration and scope of war?
Mr. Turner. In terms of how to fight it. Now, in terms of--
Senator Durbin. Duration and scope.
Mr. Turner. Duration and scope, it is an iffy issue.
You have got to draw--you know, drawing narrow lines is
hard, but you have some power in that area, clearly.
Senator Durbin. Was the Somalia action by Congress, do you
think, inappropriate and unconstitutional?
Mr. Turner. I would rather hold judgment on that and look
at it more carefully. I think there have been some of these--if
it is a situation that does not involve a need for a
declaration of war, the power of Congress is limited. Again, as
Hamilton said in Pacificus I, the power of Congress to declare
war is an ``exception'' out of the general executive power
grant, and thus should be ``construed strictly.'' So, I think
most of the--or many of these legislative powers ought to be
viewed as vetoes. Jefferson referred to them as ``negatives.''
The President cannot appoint the Secretary of Foreign Affairs
without the approval of the Senate--
Senator Durbin. I would like to let Professor Dellinger say
a word before--
Mr. Turner. Go ahead.
Mr. Dellinger. Just very quickly, Senator Durbin. The point
you make that the predicate for the resolution authorizing
force in 2002, the predicates of the regime of Saddam Hussein
and the suspected weapons of mass destruction are gone, shows
how vital it is in carrying out the constitutional function of
the Congress to have this debate and discussion, because the
question of whether U.S. forces should be used in a different
situation for different goals and different purposes is one
that I think you owe it to the families and those who serve and
to the country generally to have that debate and see is it now
in the vital interest of the United States to do that.
[Applause.]
Senator Feingold. I would like Professor Barron to respond
to Senator Durbin's question.
Mr. Barron. Since you have raised the general issue of
plenary power of the President, I thought it--we are saying, as
someone who worked in the executive branch advising the
President, I know Professor Dellinger did that, Mr. Berenson
did that, Professor Turner did that. Many people on the panel
come with a quite expansive and robust view of presidential
power. In my view, the assertion of this plenary power that you
referred to has given presidential power a bad name, and it has
seriously undermined the ability of people to convince the
public that there are reasons for the President to have
substantial authority because it has been asserted so wildly in
some many different contexts, from the interrogation context to
now the claim that even as to revisiting the predicates of a
war authorized years before, Congress is without power to have
any say as to what it should be.
Senator Durbin. Mr. Chairman, thank you for this long
overdue hearing.
Senator Feingold. Thank you, and if there are no further
comments from my colleagues, after a few concluding remarks I
will bring this hearing to a close.
This hearing has been extremely illuminating, and a number
of my colleagues have commented to me privately how much they
appreciate the job you have done here. I thank our witnesses
for attending and my colleagues for participating. The hearing
record will remain open for 1 week for additional materials
from other scholars or interested citizens or organizations to
be submitted. Written questions for the witnesses must also be
submitted by the close of business 1 week from today, and we
will ask our witnesses to respond to those questions promptly
so we can complete the record.
It is clear that this administration took the country into
war on a fraudulent basis, with the President insisting we had
no other option but to preemptively attack Iraq. Now, 4 years
into the war, we are still in Iraq, and the President insists
that we have no other option but to stay, with no end in sight.
As long as this President goes unchecked by Congress, our
troops will remain needlessly at risk and our national security
will be compromised.
Today, we have heard convincing testimony and analysis that
Congress has the power to stop a war if it wants to. The
President--
[Applause.]
Senator Feingold. The President has no plan for ending the
mission in Iraq. Worse still, his Iraq-centric policies have
undercut our national security strategy worldwide. By finally
setting a limit on our involvement in this misguided war in
Iraq and backing up that judgment with the power of the purse,
we can redeploy our troops from that country and begin to
refocus on the global terrorist networks that do continue to
threaten the United States.
Let me just quickly dispel a few myths that have been
generated as a result of the discussion about the use of the
power of the purse.
Some have suggested that if Congress uses the power of the
purse, our brave troops in the field will somehow suffer or be
left hung out to dry. This is completely false. Congress has
the power to end funding for the President's failed Iraq policy
and force him to bring our troops home. Nothing--nothing--will
prevent the troops from receiving the body armor, ammunition,
and other resources they need to keep them safe before, during,
and after their redeployment. By forcing the President to
safely bring our troops and our forces out of Iraq, we will
protect them, not harm them.
Others have suggested that using the power of the purse is
micromanaging the war. Not so. That is certainly not what I
heard from this panel. It makes no sense to argue that once
Congress has authorized a war it cannot take steps to limit or
end that war. Setting a clear policy is not micromanaging. It
is exactly what the Constitution contemplates, as we have heard
today. Congress has had to use its power many times before,
often when the executive branch was ignoring the will of the
American people. It has done so without micromanaging and
without endangering our soldiers.
Some have argued that cutting off funding would send the
wrong message to the troops. The Under Secretary of Defense
even made this argument last week with respect to the
nonbinding resolution now under consideration. I find these
claims offensive and self-serving. Congress has the
responsibility in our constitutional system to stand up to the
President when he is using our military in a way that is
contrary to our national interests. If anything--
[Applause.]
Senator Feingold. If anything, Congress's failure to act
when the American people have lost confidence in the
President's policy would send a more dangerous and demoralizing
message to our troops: that Congress is willing to allow the
President to pursue damaging policies that are a threat to our
national security and that place them at risk.
Any effort to end funding for the war must ensure that our
troops are not put in even more danger and that important
counterterrorism missions are still carried out. Every member
of this body, without exception, wants to protect our troops
and our country. We can do that while at the same time living
up to our responsibility to stop the President's ill-advised,
ill-conceived, and poorly executed policies which are taking a
devastating toll on our military and our national security. It
is up to Congress to do what is right for our troops and for
our national security, which has been badly damaged by
diverting so many resources into Iraq.
So as I said earlier, tomorrow I will introduce legislation
that will prohibit the use of funds to continue deployment of
U.S. forces in Iraq after 6 months from the enactment of that
bill. This legislation will allow the President adequate time
to redeploy our troops safely from Iraq, and it will make
specific exceptions for a limited number of U.S. troops that
must remain in Iraq to conduct targeted counterterrorism,
training, and protection missions.
From the beginning, this war has been a mistake, and the
policies that have carried it out have been a failure. Congress
must not allow the President to continue a war that has already
come at such a terrible cost. By redeploying our troops from
Iraq, we can begin to refocus on our top national security
priority: defeating terrorist networks operating around the
globe.
This hearing has shown that this legislation is fully
consistent with the Constitution of the United States. Congress
should enact it, and soon.
The hearing is adjourned.
[Whereupon, at 11:43 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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