[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


                              ----------                              

                    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

                              ----------                              


                       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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