[Senate Hearing 111-255]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-255
 
                     WAR POWERS IN THE 21ST CENTURY 

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

                                HEARING

                               BEFORE THE



                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 28, 2009

                               __________

       Printed for the use of the Committee on Foreign Relations


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                COMMITTEE ON FOREIGN RELATIONS         

             JOHN F. KERRY, Massachusetts, Chairman        
CHRISTOPHER J. DODD, Connecticut     RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin       Republican Leader designee
BARBARA BOXER, California            BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey          JOHNNY ISAKSON, Georgia
BENJAMIN L. CARDIN, Maryland         JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania   JIM DeMINT, South Carolina
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming
JEANNE SHAHEEN, New Hampshire        ROGER F. WICKER, Mississippi
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York
                  David McKean, Staff Director        
        Kenneth A. Myers, Jr., Republican Staff Director        

                              (ii)        

  














                            C O N T E N T S

                              ----------                              
                                                                   Page

Baker, Hon. James A., former Secretary of State, Houston, TX, 
  accompanied by Hon. Lee H. Hamilton, president and director, 
  Woodrow Wilson International Center, Washington, DC............     4
    Prepared statement of Mr. Baker..............................     6
    Response of Mr. Hamilton to question submitted for the record 
      by Senator Russell D. Feingold.............................    32
Christopher, Hon. Warren M., former Secretary of State, Los 
  Angeles, CA....................................................     7
    Prepared statement...........................................     9
    Responses to questions submitted for the record by Senator 
      Russell D. Feingold........................................    30
Kerry, Hon. John F., U.S. Senator from Massachusetts, opening 
  statement......................................................     1
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
  statement......................................................     2

                                Appendix

National War Powers Commission Report............................    33

                                 (iii)

  


                     WAR POWERS IN THE 21ST CENTURY

                              ----------                              


                        TUESDAY, APRIL 28, 2009

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry 
(chairman of the committee) presiding.
    Present: Senators Kerry, Feingold, Kaufman, Lugar, Corker, 
and Barrasso.

            OPENING STATEMENT OF HON. JOHN F. KERRY,
                U.S. SENATOR FROM MASSACHUSETTS

    The Chairman. The hearing will come to order.
    Today we have the privilege of hosting three of our 
Nation's most distinguished statesmen, and they are here to 
discuss one of the most vital questions that comes before our 
democracy, the question of how America goes to war.
    Secretaries Baker and Christopher and Chairman Hamilton, 
we're very grateful to you for joining us today, and we're very 
grateful to you for the work you've put into trying to find a 
practical solution to this complex problem that has dogged us 
for decades now. Your experience in government and your 
firsthand knowledge of this issue and its application make your 
testimony before this committee today particularly valuable. We 
look forward very much to hearing your views.
    Let me just share a couple of quick thoughts. We all 
understand that what brings us here is the fact that there's a 
fundamental tension in the way that America decides to go to 
war. The President is Commander in Chief of the Armed Forces, 
while Congress has the power to declare war. But, how those 
constitutional powers interact has been the subject of 
considerable debate these last years.
    Uncertainty over Congress's role in two successive wars--
Korea and then Vietnam--led to the passage of the War Powers 
Resolution in 1973. I think it's fair to say it was 
significantly a reaction to America's longest war, one that 
pulled the country apart and left many questions about 
responsibilities and Presidential decisions.
    The resolution, which today's witnesses recommend 
repealing, has been controversial ever since it was enacted 
over President Nixon's veto. The 1973 resolution represented 
Congress's best effort to try to clarify and make concrete its 
role in the decision to go to war. That resolution required 
that the President consult with Congress prior to, and on a 
regular basis after, U.S. forces were deployed. More 
controversially, the law required that the President withdraw 
our forces within 60 days of their deployment into combat, 
absent specific congressional authorization or an extension of 
the deadline by Congress.
    This approach raised important questions. Some believe that 
imposition of a deadline for withdrawal inappropriately 
constrained the Executive and projected uncertainty to enemies. 
Others more sympathetic to legislative power in the 
decisionmaking argued that allowing the President to go to war 
for 60 days or longer without authorization is an indefensible 
abdication of Congress's prerogative under the Constitution; a 
prerogative of Congress to declare war.
    What is clear to all is that the 1973 War Powers Resolution 
has simply not functioned as intended. Presidents since Nixon 
have questioned the statute's constitutionality. None have 
complied by filing a report that would trigger a 60-day 
deadline for congressional reauthorization.
    Over the years, there have been various efforts within 
Congress, including by this committee, to amend the War Powers 
Resolution. Nonetheless, the fundamental issue has remained 
unresolved.
    The National War Powers Commission consciously avoided 
trying to resolve the basic constitutional debate, and also 
avoided trying to define the contours of each branch's powers. 
And I must say, I respect the pragmatism of that approach.
    The Commission's proposal is, instead, the War Powers 
Consultation Act of 2009. It would repeal the 1973 War Powers 
Resolution and provide a new framework for interaction between 
Congress and the President. The proposed statute would require 
that the President consult with a newly formed Joint 
Congressional Committee prior to ordering the deployment of 
U.S. Armed Forces into, ``significant armed conflict'' or, 
under certain circumstances, within 3 days of deployment. The 
statute would also create a mechanism to ensure that both 
Houses of Congress vote on a particular military action within 
30 days of that deployment.
    In their work on this issue, our witnesses today have 
struggled to grapple with the exigencies of a global struggle 
against terrorism and the changing nature of America's military 
involvements, which today obviously look very different than 
they did in 1973. As one would expect of an effort from a group 
of statesmen who have tackled some of the world's most 
intractable conflicts, this is a thoughtful and a formidable 
effort, and it is very much worthy of this committee's further, 
and the Congress's further, consideration.
    I'm sure that our witnesses will go into more detail and 
specifics of their proposal, but, again, let me just thank each 
of them for their contribution, not just to this particular 
work, but to our country's work throughout their public 
service.
    And it's my pleasure to turn to the ranking member, Senator 
Lugar.

          OPENING STATEMENT OF HON. RICHARD G. LUGAR,
                   U.S. SENATOR FROM INDIANA

    Senator Lugar. Well, thank you very much, Mr. Chairman.
    As you mentioned, the committee meets today to discuss 
important questions about the respective roles of the President 
and the Congress in decisions to use force. And we're really 
very fortunate to have very dear friends with us today, 
Secretary of State Jim Baker and Warren Christopher, and my 
colleague in the Indiana delegation for so many years, 
Congressman Lee Hamilton. Each of them has unique insights into 
these issues, both from experience in government, and from 
their study as members of the National War Powers Commission. 
We welcome them to the committee and look forward to their 
testimony.
    Sending members of the United States military into harm's 
way is perhaps the most significant decision our Government can 
make. We know from long experience that a military mission is 
more likely to be successful if it is broadly supported by the 
American people. Joint actions by the President and the 
Congress in authorizing the use of force can play an important 
role in building and expressing such support. In addition, both 
allies and enemies will be more convinced of the determination 
of the United States to achieve its objectives for which the 
force is being used if those objectives are understood to be 
broadly supported by both branches.
    Under our Constitution, decisions about the use of force 
involve the shared responsibilities of the President and the 
Congress, and our system works best when the two branches work 
cooperatively in reaching such decisions. While this is an 
ideal toward which the President and Congress may strive, it 
has sometimes proved to be very hard to achieve in practice.
    Today's hearing gives us an opportunity to consider the 
framework in which decisions about the use of force are made, 
and whether there are ways in which it might be improved. 
Questions of how best to harmonize the roles of the President 
and the Congress on the use of force have proved vexing since 
the founding of the Republic. The Framers of the U.S. 
Constitution designated the President as Commander in Chief of 
the Armed Forces, but entrusted to the Congress the authority 
to declare war.
    In the period following the Vietnam war, the Congress 
passed the 1973 War Powers Resolution in an effort to 
regularize Executive/congressional cooperation on the use-of-
force decisions, and, in particular, to ensure an appropriate 
role of the Congress in such matters. It provides requirements 
for Presidential consultation with, and reporting to, the 
Congress on issues related to the use of force, and a 
requirement that the President terminate uses of armed force 
not specifically authorized by the Congress within the 
timeframe specified by the resolution.
    The War Powers Resolution has not proven to be a panacea, 
and Presidents have not always consulted formally with the 
Congress before reaching decisions to introduce U.S. force into 
hostilities, and may have objected to the assertion that 
inaction by Congress can compel the termination of a military 
action initiated by the President. The Congress has not always 
taken up legislation authorizing or expressing disapproval of 
Presidential uses of force. Both Presidents and Members of 
Congress have voiced dissatisfaction with the resolution's 
operation and practice.
    Interaction between the President and the Congress related 
to the War Powers Resolution has also been affected by inherent 
ambiguities. In today's world, many potential military actions 
are very small scale, having a very limited purpose or target 
terrorists or other nonstate combatants. The recent rescue 
operation mounted against the Somali pirates is an example, and 
combined all three of these conditions. Does every movement of 
the military ordered by the Commander in Chief that might lead 
to some use of force require congressional consultations?
    Ambiguity also exists about what constitutes adequate 
notification and consultation. On April 14, 1986, for example, 
I was called to the White House at 4 p.m. along with other 
Senate and House leaders. We were informed that, 2 hours 
earlier, United States warplanes had taken off from airbases in 
the United Kingdom headed for targets in Libya. They were due 
to strike that country at about 7 p.m. During the ensuing 2\1/
2\-hour meeting, we received a full briefing and engaged in a 
detailed conversation with President Reagan and national 
security officials on the bombing operation and its 
implications. In my judgment, this meeting constituted 
acceptable consultation, given the need for secrecy and the 
possibility that the planes could have turned around had the 
President encountered strong opposition from the group 
assembled. But, some commentators believed the meeting fell 
well short of the requirements for full congressional 
consultation.
    The report of the National War Powers Commission proposes a 
new statute to replace the War Powers Resolution. Under the 
proposed statute, the President would be required to consult 
with a newly created Joint Congressional Consultation 
Committee, in most cases before ordering the deployment of 
United States Armed Forces into significant armed conflict. The 
statute would also require both Chambers of Congress to hold a 
timely up-or-down vote regarding any significant armed conflict 
in which the President introduces U.S. forces. The proposed 
statute further provides for the President to consult with, and 
report to, the Congress regularly during the course of 
significant armed conflicts in which the United States forces 
are engaged.
    We look forward the testimony of our witnesses about the 
issues which the Commission has grappled with in formulating 
this proposal, and ways in which they believe their proposed 
approach would improve collaboration between the President and 
Congress on decisions relating to the use of force.
    I thank the chairman again for calling the hearing. I look 
forward to our discussion.
    The Chairman. Thank you very much, Senator Lugar.
    Again, we welcome you. None of you are strangers to this 
room or this table. I must say, looking out at you, I was 
looking at you and remarking that none of you seem to have 
changed. And I'm not sure if you think that, but certainly from 
this side of the dais, whatever you're imbibing down there in 
Texas, California, and elsewhere, seems to sit well.
    Mr. Secretary Baker, do you want to lead off.

 STATEMENT OF HON. JAMES A. BAKER, FORMER SECRETARY OF STATE, 
HOUSTON, TX, ACCOMPANIED BY HON. LEE H. HAMILTON, PRESIDENT AND 
 DIRECTOR, WOODROW WILSON INTERNATIONAL CENTER, WASHINGTON, DC

    Mr. Baker. Mr. Chairman, thank you very much.
    The Chairman. Thank you.
    Mr. Baker. We are very appreciative of the committee 
entertaining this hearing today.
    The Chairman. Your microphone? Could you just press the 
button?
    Mr. Baker. First, we thank you for holding this hearing. We 
thank Ranking Member Lugar for holding this hearing, members of 
the committee. It really is a privilege and an honor for us to 
be back in this room and to be before you.
    As you have quite accurately pointed out, we're here to 
discuss the report of the National War Powers Commission, which 
Secretary Christopher and I cochaired, and on which your former 
congressional colleague Lee Hamilton served so very ably as a 
valuable member.
    Let me, if I might, start with a little background on the 
Commission and the problem that you have quite accurately 
pointed out that it deals with, and then Secretary Christopher 
will outline our proposed new statute.
    Two years or so ago, Chris and I were approached by the 
Miller Center at the University of Virginia to cochair an 
independent bipartisan commission to consider this issue that 
has bedeviled the legal experts and government officials since 
the Constitution was framed--the question of how our Nation 
makes the decision to go to war. Of course, we all know the 
Constitution gives the President the powers of Commander in 
Chief, and it gives the Congress the power of the purse, but 
also specifically the power to declare war. History, though, 
indicates that Presidents and Congresses have often disagreed 
about the scope and extent of their respective roles in the 
decision to go to war. And the Supreme Court has consistently 
shied away from settling the constitutional issue.
    So, it was evident to us after a few meetings of our 
Commission that what we really needed to try and come up with 
was a pragmatic and practical solution to this conundrum. As we 
put together the Commission, it was important, we thought, that 
we have a very wide range of perspectives and voices, both 
political and from a policy standpoint. And so, our Commission 
includes legal experts, former congressional staffers, former 
White House staffers, and former military leaders. The 12-
member Commission, if you look on--I think you all have a copy 
of our report--at the names on the front page there, the 12-
member Commission is equal parts Democrats and Republicans.
    After 14 months of study, we concluded, as you stated, Mr. 
Chairman, that the central law governing this critical 
decision--that is, the War Powers Resolution of 1973, which was 
passed over a Presidential veto--is ineffective and that it 
really should be replaced with a better law. It should be 
repealed and replaced with a better law.
    The 1973 resolution's greatest fault, I suppose, is that 
most legal experts will tell you that it is unconstitutional, 
although I'm quick to add that the Supreme Court has never 
expressly ruled on that point.
    We happen to believe that the rule of law, which is, of 
course, a centerpiece of our American democracy, is undermined 
and it is damaged when the main statute in this vital policy 
area is regularly questioned or ignored.
    The resolution has other problems. It calls for the 
President to file reports of armed conflicts, and then it uses 
these filings to trigger an obligation for the President to 
remove troops within 50--within, sorry, 60 or 90 days if 
Congress has not affirmatively approved the military action. 
This, of course, purports to allow Congress to halt military 
campaigns simply by inaction. Unsurprisingly, no President, 
Democrat or Republican, has ever filed reports in a way that 
would trigger the obligation to withdraw forces. As a result, 
the 1973 statute has been honored more in the breach than by 
its observance.
    Recognizing this, others have suggested amending or 
replacing the flawed law, but no such proposal has ever gotten 
very far, typically because most of them have sided too heavily 
with either the President or the Congress.
    A common theme, however, in all of these proposals and that 
runs through them, the importance of meaningful consultation--
meaningful consultation--between the President and the Congress 
before the Nation is committed to war.
    Our proposed statute would do exactly that, promote 
meaningful discussion between the President and Congress when 
America's sons and daughters are to be sent into harm's way, 
but it expressly does so, Mr. Chairman, in a way that does not 
limit or prejudice either the executive or the legislative 
branches' rights or ability to assert their respective 
constitutional war powers. Neither branch is prejudiced by what 
we are proposing. And, in fact, we think that both branches and 
the American people will benefit from it.
    Now, before I turn the microphone over to Secretary 
Christopher, let me first say how rewarding it has been to work 
with this fine gentleman and this able statesman and this 
dedicated public servant. It has, of course, been equally 
rewarding to once again be working with my former cochairman on 
the Iraq Study Group, Lee Hamilton, and your former colleague 
up here in the Congress.
    So, Chris, you want to pick up from there?
    [The prepared statement of Mr. Baker follows:]

 Prepared Statement of James A. Baker III, Former Secretary of State, 
                              Houston, TX

    Chairman Kerry, Ranking Member Lugar, members of the committee, it 
is an honor to be with you today.
    We are here to discuss the report of the National War Powers 
Commission, which Chris and I cochaired and on which your former 
congressional colleague, Lee Hamilton, served as a very valuable 
member.
    Let me start with background on the Commission and the problem it 
dealt with. Secretary Christopher will then outline our proposed new 
law.
    Two years ago, Chris and I were approached by the Miller Center at 
the University of Virginia to cochair an independent bipartisan 
commission to consider an issue that has bedeviled legal experts and 
government officials since the Constitution was framed--the question of 
how our Nation makes the decision to go to war.
    Our Constitution gives the President the powers of Commander and 
Chief. The Congress has, of course, the power of the purse and the 
power to declare war.
    But history indicates that Presidents and Congresses have often 
disagreed about their respective roles in the decision to go to war. 
And the Supreme Court has shied away from settling the constitutional 
issue.
    It was evident that we needed a practical solution to this 
conundrum.
    As we put together the Commission, it was important that we have a 
wide range of perspectives and voices. And so our Commission includes 
legal experts, former congressional members, former White House 
staffers and former military leaders. The 12-member Commission is equal 
parts Democrats and Republicans.
    After 14 months of study, we concluded that the central law 
governing this critical decision, the War Powers Resolution of 1973, is 
ineffective, and should be repealed and replaced with better law.
    The 1973 resolution's greatest fault is that most legal experts 
consider it unconstitutional, although the Supreme Court has never 
ruled on it. We believe that the rule of law, a centerpiece of American 
democracy, is undermined and damaged when the main statute in this 
vital policy area is regularly questioned or ignored.
    The resolution has other problems. It calls for the President to 
file reports of armed conflicts and then uses these filings to trigger 
an obligation for the President to remove troops within 60 or 90 days 
if Congress has not affirmatively approved the military action. This 
purports to allow Congress to halt military campaigns by inaction.
    Unsurprisingly, no President--Democrat or Republican--has filed 
reports in a way that would trigger the obligation to withdraw. As a 
result, the 1973 statute has been honored more in the breach than by 
observance.
    Recognizing this, others have suggested amending or replacing the 
flawed law. But no such proposal has gotten very far, typically because 
most of them have sided too heavily with either the President or 
Congress.
    A common theme, however, runs through all of these efforts: The 
importance of meaningful consultation between the President and 
Congress before the Nation is committed to war.
    Our proposed statute would do exactly that--promote meaningful 
discussion between the President and Congress when America's sons and 
daughters are to be sent into harm's way.
    But it expressly does so in a way that does not limit or prejudice 
either the executive or legislative branches' rights or ability to 
assert their respective constitutional war powers. Neither branch is 
prejudiced by what we are proposing.
    And in fact, we think both branches and the American people will 
benefit from it.
    Before I turn the microphone over the Secretary Christopher, let me 
first say how rewarding it has been to work with this fine gentleman, 
able statesman, and dedicated public servant.

 STATEMENT OF HON. WARREN M. CHRISTOPHER, FORMER SECRETARY OF 
                     STATE, LOS ANGELES, CA

    Mr. Christopher. Thank you very much, Mr. Chairman, ranking 
member, members of the committee.
    My testimony will follow up briefly on Secretary Baker's 
statement. I appreciate those kind things that Secretary Baker 
had to say about me. Without going on about it, let me just say 
it's a lot more pleasant working with Secretary Baker than it 
was working against him, and I've had both experiences.
    The statute that we propose is really quite 
straightforward. It establishes a joint bipartisan 
congressional consultation committee consisting of the leaders 
of the House and the Senate and the chairs of the relevant 
committees--including this committee, Intelligence, Armed 
Forces.
    Under the proposed statute, the committee is provided with 
a permanent professional staff and access to relevant 
intelligence information. This is a new provision, and, I 
think, one that's quite salutary.
    The statute requires that the President consult with this 
committee before deploying U.S. troops into ``any significant 
armed conflict,'' which is defined as combat operations 
lasting, or expected to last, more than a week. Now, for 
purposes of this statute, ``consultation'' means providing an 
opportunity for a timely exchange of views, not just 
notification.
    Within 30 days after the armed conflict begins, Congress is 
required to vote up or down on a Resolution of Approval. If the 
Resolution of Approval is defeated, any Senator or 
Representative may file a Resolution of Disapproval. A 
Resolution of Disapproval would have the force of law, of 
course, only if it's presented to the President and signed by 
him, or if it's passed over the President's veto. However, if a 
Resolution of Disapproval does not survive the veto, Congress 
can express its opposition through internal rules.
    Mr. Chairman, I recognize that many of the advocates of 
congressional power argue that Article I, Section 8 of the 
Constitution puts the decision to go to war exclusively in the 
hands of Congress by giving Congress the power to declare war. 
On the other hand, opponents of the Presidential authority 
point to the fact that the President is the Commander in Chief 
under the Constitution. They say that the Framers wanted to put 
the authority to make war in the hands of the Government 
official who had the most information and the ability to 
execute.
    Although both sides of this longstanding argument have good 
points to make, I would just make three points about these 
arguments.
    First, no consensus has emerged from this debate over the 
last 200 years. Nobody has won this longstanding argument.
    Second, I think it's become fairly clear that only a 
constitutional amendment or a decisive Supreme Court opinion is 
likely to resolve this debate, and neither of these is likely 
to be forthcoming anytime soon. The courts have turned down war 
powers cases filed by more than 100 Members of Congress, either 
on the grounds that they are political questions or that the 
plaintiffs in those actions lacked standing to sue.
    Third, whatever our Commission might have felt about this 
debate--and we discussed it for a long time, as Secretary Baker 
said--we recognize that we could not resolve this longstanding 
issue. And the last thing we wanted to do as a commission was 
to file yet another report on who is right or wrong, and have 
it gather dust on the library shelves.
    Therefore, in drafting this statute, our Commission decided 
deliberately not to try to resolve this longstanding debate. 
Indeed, our proposed statute says that neither branch, by 
supporting or complying with this act, shall in any way limit 
or prejudice its right or ability to assert its constitutional 
war powers.
    Instead of trying to call balls or strikes, we unanimously 
agree that any legislative reform must focus on practical steps 
to ensure that the President and the Congress consult in a 
meaningful way before going to war. We believe that, among all 
the various alternatives--and we certainly talked about a lot 
of them--this proposed statute best ensures consultation. We 
believe it's a significant improvement over the 1973 
resolution, and it's good for the President, the Congress, and 
for the American people.
    Now, from the standpoint of the Congress, the statute gives 
it a much more significant seat at the table when our Nation is 
deciding whether or not to go to war, provides not only a seat 
at the table, but it gives a permanent staff to the committee 
and access to all relevant intelligence information. It 
requires real consultation, not just lipservice.
    Now, in my experience, the seasoned views of the 
congressional leaders constitute a very vital resource for the 
President in his decisionmaking process. Indeed, it's very 
healthy, I think, for the President to hear the independent 
opinions of people who don't work for the President. I know how 
confining it is when the President only talks to people who 
happen to work for him.
    For the President, of course, this law that we're proposing 
eliminates a law that every President since 1973 has found to 
be unconstitutional and has largely ignored. The statute 
provides a mechanism for consultation with the Congress, and it 
identifies a leadership group with whom the President should 
consult.
    I know, down in the White House, they have often had a 
question as to who the President should consult with. Sometimes 
I think the President has consulted with those who are most 
likely to agree with him, and we think that's probably not a 
healthy situation.
    From the standpoint of the American people, the statute 
will really enhance the prospect of consultation between 
Congress and the President on matters of war, and make it a 
regular thing. This is something that public opinion polls have 
consistently indicated, for more than 70 years, the American 
people have wanted. We really believe the American people 
deserve something better than a law that's ineffective and has 
been largely ignored for 70 years.
    Mr. Chairman, Mr. Ranking Member, and Senators, thank you 
very much for hearing us, and we look forward to trying to 
respond to any questions that you may have.
    [The prepared statement of Mr. Christopher follows:]

 Prepared Statement of Warren Christopher, Former Secretary of State, 
                            Los Angeles, CA

    Mr. Chairman, Ranking Member, and members of the committee, my 
testimony will follow up briefly on Secretary Baker's statement.
    Without going on about it, let me just say that it is a lot more 
fun working with Secretary Baker than working against him. He is an 
extraordinary American leader.
    The statute we propose is straight forward. It establishes a 
bipartisan Joint Congressional Consultation Committee consisting of the 
leaders of the House and the Senate, and the chairs of the key 
committees. Under the proposed statute, the committee is provided with 
a permanent professional staff and access to relevant intelligence 
information.
    The statute requires the President to consult with the 
Congressional Consultation Committee before deploying U.S. troops into 
any significant armed conflict, which is defined as combat operations 
lasting or expected to last more than a week. If the need for secrecy 
precludes prior consultation, the President is required to consult with 
the committee within 3 days after the conflict begins. For purposes of 
the statute, consulting means providing an opportunity for a timely 
exchange of views, and not mere notification.
    Within 30 days after the armed conflict begins, Congress is 
required to vote up or down on a resolution of approval. If the 
resolution of approval is defeated, any Senator or Representative may 
file a resolution of disapproval. A resolution of disapproval will have 
the force of law only if it is passed by both Houses and signed by the 
President, or if the President's veto is overridden. However, if the 
resolution of disapproval has not survived the President's veto, 
Congress can express its opposition through its internal rules.
    Mr. Chairman, I recognize that many advocates of congressional 
power argue that article 1, section 8 of the Constitution puts the 
decision to go to war exclusively or primarily in the hands of Congress 
by giving Congress the power to declare war. They say that by this 
provision, the Framers of the Constitution stripped the executive 
branch of the power to commence war that the English King enjoyed.
    On the other hand, proponents of Presidential authority point to 
the Executive power and Commander in Chief clauses in the Constitution. 
They say that the Framers wanted to put the authority to make war in 
the hands of the government official who had the most information and 
the ability to execute; and they point to recent history as proof of 
the President's predominance.
    A whole forest of trees has been felled to publish writings on this 
debate. Although both sides make compelling arguments, only three 
propositions hold true:
          (1) No consensus has emerged from the debate in 200 years; no 
        one has ``won'' the argument.
          (2) Only a constitutional amendment or decisive Supreme Court 
        opinion will resolve the debate; neither is likely forthcoming 
        anytime soon, and courts have turned down war powers cases 
        filed by as many as 100 Members of Congress.
          (3) Despite what I or my fellow commission members may feel 
        about the debate, we cannot resolve it, and the last thing we 
        wanted to do was offer yet another opinion on who was right or 
        wrong.
    Thus, in drafting the statute before you, our Commission 
deliberately decided not to try to resolve the debate. Indeed, our 
proposed statute says ``neither branch by supporting or complying with 
this act shall in any way limit or prejudice its right or ability to 
assert its constitutional war powers, or its right or ability to 
question or challenge the constitutional war powers of the other 
branch.''
    Instead of trying to call balls or strikes, we unanimously agreed 
that any legislative reform must focus on practical steps to insure 
that the President and Congress consult in a meaningful way on the 
decision to go to war. We believe that, among all available, practical 
alternatives, the proposed statute best accomplishes that result, is a 
significant improvement over the 1973 resolution, and is good for the 
Congress, the President, and the American people.
    From the standpoint of Congress, the statute gives a more 
significant seat at the table when our Nation is deciding whether or 
not to go to war. It provides not only a seat at the table, but a 
permanent staff and access to all relevant intelligence information. It 
calls for genuine consultation, not mere lip service. The seasoned 
views of congressional leaders constitute a vital resource for the 
President in his decisionmaking process. It is very healthy for the 
President to hear the independent opinions of people who don't work for 
him.
    For the President, the proposal eliminates a law that every 
President since 1973 has regarded as unconstitutional. It provides a 
mechanism for his consultation with the Congress, and it identifies the 
leadership group with whom he should consult.
    From the standpoint of the American people, this statute will 
enhance the prospect of cooperation between the Congress and the 
President on matters of war. This is something that public opinion 
polls have consistently indicated Americans have wanted for the past 70 
years.
    The American people deserve something better than a law that is 
ineffective and has been largely ignored for 70 years. The new statute 
achieves that result.
    Mr. Chairman, we have sought to set a careful balance between the 
Congress and the President on this matter of grave importance. Neither 
the strongest advocates of congressional power nor those of 
Presidential power are likely to be completely happy with our proposal, 
but we think that this is a reflection of the balance that we have 
sought to strike.

    The Chairman. Thank you very much, Mr. Secretary.
    Mr. Chairman, I understand you're not going to make a 
statement, is that correct?
    Mr. Hamilton. No.
    The Chairman. OK, but submit to questions?
    Well, let me thank each of you for this. Let me emphasize, 
if I can, how important this is. I think my colleagues here 
understand that, while the Nation's attention is not focused on 
this issue today, and while the Klieg lights and the sort of 
hot breath of the media is not intense here at this moment, 
everybody in this room, particularly those at this table, 
understand the implications and how important it is to be here 
now, trying to figure out the best path through this, rather 
than in the middle of the crisis, when all the attention is 
focused on it, but when you have the least ability to be able 
to do something about it.
    So, this is the moment, and I want to thank each of the 
participants. I also want to thank Governor Baliles and the 
Miller Center for their support of this project. It's a very 
important contribution to our Nation's discourse. And, without 
objection, I intend to put the entire War Powers Commission 
Report into the record, because I think this is a record that's 
going to be studied and analyzed as we go forward, and we want 
to lay the predicate for our thinking and for whatever legal 
proceeding might one day occur as a consequence of this. So, we 
are laying a record with respect to all of that at this time.

[Editor's note.--The War Powers Commission Report can be found 
in the Appendix on page 33 at the end of this hearing.]

    The Chairman. In your proposal, you set out types of 
operations that are specifically excluded; three, in 
particular: Actions taken to repel attacks, or prevent imminent 
attacks on the United States; two, limited acts of reprisal 
against terrorists or states that sponsor terrorism; and three, 
missions to protect or rescue American citizens and military or 
diplomatic personnel.
    Now, many of our operations today--military operations--are 
focused on our counterterrorism efforts, and I'd just like to 
try to clarify, if we can, a little bit, sort of, what your 
thinking is here.
    Under what circumstance do you envision these exceptions 
allowing a President to order military strikes against state 
sponsors of terrorism without any consultation with Congress? 
Do you envision that? For instance, there are certain states 
engaged in proliferation activities today; one might envision 
some sort of counterterrorism preemptive effort with respect to 
them, and I wonder if you'd comment on that.
    Mr. Baker. Thank you, Mr. Chairman.
    The exclusions or exceptions that are listed--and you noted 
three of them; there are some others--operate--the President 
would be free to undertake those types of actions without prior 
consultation, without satisfying the requirements of our 
proposed statute. But, once those actions ripened into a 
significant armed conflict--that is, once those actions 
extended for more than 7 days--the statute would be triggered, 
there would have to be consultations and then continuing 
consultations, as the statute requires.
    The Chairman. So, is ``significant armed conflict'' defined 
by the amount of time or by the size and scope of the 
operation?
    Mr. Baker. It's defined by the--it requires combat 
operations, and it requires the expiration of 7 days. So, I 
think I would say the amount of time. But, it is not just 7 
days during which combat operations are taking place. If the 
President knows, or has reason to believe, that a particular 
operation will last more than 7 days, the statute is triggered. 
Now, that's difficult, of course, because you can't always get 
inside a President's head. But, it's more, really, the time, 
but there is a requirement that the operations be combat 
operations as opposed to just preparations therefore.
    Mr. Hamilton. Mr. Chairman----
    Mr. Chairman. Lee.
    Mr. Hamilton. Mr. Chairman, you want to contrast that with 
the War Powers Resolution, which uses the term ``hostilities'' 
and is very inadequately defined. Definitions, of course, are 
extremely difficult in this area, and we didn't want to 
overdefine terms. We think we've struck the right balance here, 
but obviously that's our judgment.
    The Chairman. Can you--and you are correct, Mr. Secretary, 
I--those are several--those are three of a number of 
exclusions, and I don't want to make it sound like those were 
exclusive. But, the President has to consult with the Joint 
Committee prior to the conflict unless there's a need for 
secrecy or other emergent circumstances precluding that. Can 
you give us a sense of what the--what would qualify as 
``emergent circumstances'' that would relieve the President of 
the duty for predeployment consultation?
    Mr. Baker. Well, I think the ranking member gave us a good 
example of one, the air strike on Libya, where secrecy was 
critical. There would be others--that's a separate provision, 
Mr. Chairman, of course, from the exclusion provision and 
exemption provision. There is one separate provision--I think 
it's 4(c)--that says, if there is a need for secrecy to protect 
the lives, for instance, of American servicemen, then the 
President can begin his consultation 3 days after ordering or 
beginning the operation. That's a separate provision, of 
course.
    Under the ones that you initially read off, the general 
exclusions and exemptions, those are--there would be no 
requirement to consult there before those actions were 
undertaken, but, once they had gone on for 7 days, then there 
would be an obligation to consult. A good example might be, 
from your experience, training operations, perhaps, in Vietnam 
that ripened into something a heck of a lot more than training 
operations. If those training operations ripened into combat 
operations that extended for more than 7 days, the statute 
would be triggered.
    The Chairman. So, does the consultation component of this 
depend on the good faith of the President, or is there any kind 
of guillotine, is there any sort of----
    Mr. Baker. To some extent, when you're talking about 
requiring more meaningful consultation, there has to be good 
faith, and it depends upon good faith, I think, on the part of 
the President, but also on the part of the Congress, the people 
being consulted.
    I would make the point, Senator Kerry, that many people 
would argue that the President could do, anyway, some of the 
things that are listed in here as exemptions; that is, take 
actions to protect American possessions or embassies or 
citizens abroad. I think a lot of people would argue whether 
the President has that right anyway. Under our statute, he 
would have that right, but he--but, it wouldn't extend ad 
infinitum. He could--if he took action to protect an embassy or 
American citizen abroad, and it ripened into a combat event 
that lasted more than 7 days, then the statute's triggered and 
there would have to be ongoing consultation.
    Mr. Hamilton. And the important thing there is that the 
President must consult in that situation. He doesn't have an 
option. If he's going to commit troops for a significant armed 
conflict, he shall consult, which is----
    Mr. Baker. But, not obtain approval. No requirement in here 
for approval, but there's a mandatory requirement of 
consultation.
    The Chairman. Right, but there is, then, a mandatory 
requirement for a vote within 30 days----
    Mr. Baker. That's correct.
    Mr. Hamilton. Correct.
    The Chairman. So you are triggering a requirement for 
Congress to engage, which has been significantly absent with 
respect to war powers. I mean, you know, it seems to me that 
the constitutional mandate, ``Congress shall declare war,'' 
does not require Congress to declare war.
    Mr. Baker. No.
    The Chairman. It simply gives them the power to declare 
war, if they choose to do so. Correct?
    Mr. Baker. That's correct.
    The Chairman. And, in effect, Congress has complicated this 
significantly, not the least of which, for instance, in the 
longest war in our history, Vietnam, where they refused to ever 
step up and either do the purse or make the declaration.
    Mr. Baker. That's correct, sir. And we think, in something 
as important and serious as this, and particularly given the 
fact that the polls over the last 50-plus years have showed 
that the American people really want both the Congress and the 
President involved when the Nation sends its young men and 
women into battle, we don't think it's unreasonable to say 
Congress, after 30 days, should take a position on the issue.
    Now, if a vote--if a Resolution of Approval does not pass, 
our statute provides that any Member of the House or Senate 
could introduce a Resolution of Disapproval. If that Resolution 
of Disapproval passes, it would not have the force of law 
unless the constitutional requirement of the presentment clause 
was met and it was presented to the President for his signature 
or veto. If he vetoed it and Congress overrode the veto, then, 
of course, you would have an actionable event of disapproval.
    The Chairman. All of which, in total, I believe, actually--
and this is what I think is very significant about your 
proposal and one of the reasons why I think it threads the 
needle very skillfully--is that you actually wind up 
simultaneously affording the President the discretion, as 
Commander in Chief, and the ability to be able to make an 
emergency decision to protect the country, but you also wind up 
empowering Congress. And, in fact, subtly, or perhaps not so 
subtly, asking Congress to do its duty. I think that's not 
insignificant at all, and I think you've found a very skillful 
way of balancing those without even resolving the other issues 
that have previously been so critical, in terms of the larger 
constitutional authority, one way or the other.
    Mr. Baker. Thank you, sir.
    The Chairman. So, I----
    Mr. Baker. May I just make one final----
    The Chairman. Absolutely.
    Mr. Baker. [continuing]. One other statement? I don't mean 
to be doing all the talking, here.
    We think, as Chairman Hamilton said, I think, over on the 
House side, this proposal presents an outstanding opportunity 
for bipartisanship. We talk a lot about bipartisanship these 
days. Here's a really good example of an opportunity to achieve 
that.
    The disagreements in this area have been disagreements 
between the branches, not so much disagreements between the 
parties. And this is something that is--it's practical, it 
preserves the ability of each branch to continue to make their 
constitutional arguments, but gives us a pragmatic and 
practical way of going forward, and it should not be a matter 
of partisan political difference.
    The Chairman. I couldn't agree more.
    Senator Lugar.
    Senator Lugar. Well, thank you, Mr. Chairman.
    In my opening comments, I mentioned this date of April 14, 
1986, because it framed several of the issues that we're 
discussing today. It was a pragmatic judgment by President 
Reagan to call this group together, which looks very much like 
the sort of group that you're suggesting. They--I think it 
encompassed the chairmen and ranking members of Foreign 
Relations and Intelligence, and that was--and Armed Services--
and that was true of House Members. They may not all have been 
there. But, I put the thing into my statement, because I have a 
picture of us sitting around the table. This is not anecdotal, 
there's sort of documentary evidence of who was at the meeting.
    And it was a rather awesome experience to hear the 
President, and then he turns to the Secretary of Defense, 
describing the fact that there are aircraft in the air and they 
are taking action because some European countries at the time 
were making it difficult to fly over on a mission of this 
variety, so it was taking them a while to get there, and that's 
why the 3-hour lapse.
    And also, it was interesting that there was enough anxiety 
or difference of opinion that the conversation went on for 2\1/
2\ hours, during which you have the sense that these planes are 
approaching.
    I remember coming back to my office and hearing, sort of 
breaking into the 7 o'clock newscast, the thought that aircraft 
were bombing Libya. And I said, ``Well, that's right. That's 
what's happened.''
    Now, in this particular instance, however, there was this 
degree of consultation and responsibility. None of us knew what 
Libya would do, what kind of retaliation and what the 
aftereffects might be. As it turned out, there are not 
immediate ones, so the 7-day rule, or the 30-day rule, probably 
would not have kicked in, which was sort of a mission-
accomplished at that point.
    But, the thing I want to raise is, Libya was a nation-
state. The attack really was on areas very close to the 
President--or the Great Leader of the country, and, in fact, 
some of his relatives were killed, as I recall, in the process.
    The problems that we have talked about in this committee 
recently revolve around such thoughts as al-Qaeda might be not 
only in the mountains of Pakistan, but in Somalia or in Yemen 
or, as we have found out in attacks on our embassies before.
    Now, one of the values of this, as I've thought through 
this, is that this Joint Committee possibly might meet with 
some regularity, as opposed to just simply on the occasion of a 
Libya situation in which the President or those responsible 
could say, ``Now, this is very confidential, but, in fact, a 
war on terror is being fought in several fronts. There's a 
conspicuous one out in Afghanistan and Pakistan, and we talk 
about that every day, because it's very important, but what all 
of you folks in Congress need to understand is that our 
intelligence services are very good, they've ferreted out where 
al-Qaeda may be. These people are fully as capable of launching 
or planning an attack on the United States as the people were 
in camps in Afghanistan earlier. And therefore, they might say, 
``We're going to take action,'' or they might describe 
continuous action they are taking, in which various members of
al-Qaeda may be losing their lives or losing something in the 
process. And the ramifications of that are not really clear in 
the host country, which may be a failed state, This doesn't 
negate the fact we may deal with nation-state war in the 
future, but many would describe the more probable course in the 
war on terror as dealing with, if not al-Qaeda, other cells 
that are a threat to ourselves, our allies, to world stability, 
a much more difficult thing, perhaps, to define. And this is 
why I find attractive the idea of this committee.
    Now, the dilemma, I think, for Chairman Kerry and--as 
chairman of this committee, for example, would be, well, this 
new committee has staff, and it has some jurisdiction on some 
of the most difficult issues. How does that work out with the 
staff of our committee, bipartisan staff that works all the 
time on these issues, or Armed Services or Intelligence? You 
know, you may say, ``Well, that's for you folks to work out. 
You have--you're going to be serving as chairman or ranking 
member on both of these committees, and you already have 
certain staff members on your own staff, quite apart from the 
committee, and so forth.'' I'm just curious, did you have any 
discussion in your group about, as a practical matter, how this 
works out with regard to committee staff, who has jurisdiction, 
where--which committee do we really discuss this? Do we take it 
up in the joint meetings, regularly with the President, or so 
forth, or--is our responsibility really to our entire 
committee, to a certain degree of public hearing, so that we're 
all up to date on this? Do you have any feeling about these 
internal workings of how this might work?
    Mr. Christopher. Senator Lugar, our Commission talked quite 
a lot about the new forms of war and nonstate actors. We had a 
number of witnesses--I think almost 50 witnesses--among them, 
Dean Harold Koh, who I understand you'll be hearing this 
afternoon in his nomination. And we understood that, and one of 
the reasons we put in section 4(a) of the statute was to meet 
that exact problem. We say, ``The President is encouraged to 
consult regularly with the Joint Congressional Consultation 
Committee regarding significant matters of foreign policy and 
national security.''
    So, we certainly don't mean to preempt the jurisdiction of 
this committee or other committees, but I think this new 
committee would become the major forum for consultation on 
issues of war and peace, and that's why we have given this 
committee a separate professional staff, an ongoing 
professional staff that can be very useful in the future, as 
well as access to all relevant intelligence.
    Sometimes, it seemed to me that Congress did not have as 
fully adequate access to information as sometimes they have 
down in the White House. So, I think we understood that very 
well, and we understood that these committees would continue to 
have their jurisdiction, but a major jurisdiction would be in 
this new joint committee, which had a staff that would be 
working on it on a rather continuous basis.
    Senator Lugar. Well, I appreciate that answer. I think--
maybe they're just my own personal reflections, but as our 
Nation approached the current war with Iraq, I think the 
feeling that I had during the summer vacation, as I heard 
statements by Vice President Cheney or others, was that we 
might be going to war before we got back in the fall. Now, I 
was reassured when we had a meeting with President Bush around 
the table with many of the people who will be in this committee 
that you've suggested, and he said, ``We're going to the United 
Nations. Secretary Powell is going to testify.'' And so, that 
was somewhat reassuring we were not going to war, since we were 
going to the United Nations. But, then things deteriorated. And 
before long there were at least thoughts that we were going to 
war sooner than later, because the weather in Iraq gets warmer, 
and therefore, if you were going to do something, it would be 
better to do it in the spring than in the summer, if you were 
to be effective with a strike of that sort.
    Now, this sort of came through the rumor mill. There was no 
committee in which some of us might have asked the President, 
``Is that true? Is the fact--in a military situation, that this 
is going to have to work out at this particular point?'' I just 
reflect on this anecdotally, because these are very large 
decisions that finally involved us for a long time, and the 
need to have this consultation and some access to the President 
and the Secretaries, and what have you, for many of us, we feel 
is very important, our responsibilities.
    But, I ask the question, just in behalf of our committees, 
as they are constituted, while this committee of leaders is 
meeting, that--after all, we were also trying to draw together, 
ultimately, if we were going to have votes on this subject, 
votes in the committee, votes in the Congress, relevant debate 
of all of us, as well as those sitting around the table--and 
I'm, in my own mind's eye, trying to think how all of this 
progresses.
    Mr. Baker. Well, Senator, if I might chime in here, Section 
5(b), if you'll take a look at 5(b) of our proposed statute, 
says that it is our view that the committees of jurisdiction 
for the Resolution of Approval or Disapproval should be the 
Senate Foreign Relations Committee in the Senate and the House 
Foreign Affairs Committee in the House. So, we suggest the lead 
role for these two committees.
    Senator Lugar. They're mentioned specifically in this 
section.
    Mr. Baker. They are mentioned specifically in 5(b), and 
they are--and it is our recommendation that they have the lead 
role.
    Mr. Hamilton. Senator Lugar----
    Mr. Baker. That doesn't answer all of your questions, 
about----
    Senator Lugar. No, but that's----
    Mr. Baker. [continuing]. How do you----
    Senator Lugar. [continuing]. Explicitly you've tried to 
meet that.
    Mr. Baker. Yes, sir. Yes, sir.
    Mr. Hamilton. Senator Lugar, my impression is that the 
decision to go to war involves a lot more than foreign policy; 
it involves intelligence, and it involves, certainly, the Armed 
Forces. And you have enormous responsibilities in this 
committee, extending far beyond the questions of war and peace. 
Your committee, this committee, would not in any way be 
diminished by this proposal. But, what we try to do is to put 
in the room with the President the key players in all of the 
areas that would be involved in making a decision to go to 
war--Intelligence, Armed Services, Foreign Relations, Foreign 
Affairs in the House--and, of course, the ranking member and 
the chairmen of these key committees would serve on the 
consultative committee, so there would be good coordination.
    This is, as I think you said in your statement, the most 
important decision government makes, whether or not you go to 
war. And you want to get it right, as best you can. And I think 
you have a better chance of getting it right if you have all 
perspectives brought to bear and available to the President for 
consultation.
    Senator Lugar. Thank you very much.
    The Chairman. If I could just follow up on that quickly, 
and I apologize, Senator Kaufman, but--3(c) ``says the Joint 
Congressional Consultation Committee consists of.'' You've 
referred to it prior to that, but this is where you create it, 
so to speak. And it simply says who it will be made up of. And 
then, the chairmanship and the vice-chairmanship will rotate.
    My question is, Would it be--I interpret it as a purely 
consultative committee for the sole purpose of--not with an 
ongoing standing obligation under the rules of the Senate; in 
other words, requiring staff and an enormous amount of work. 
Now, maybe you interpret that differently, but would it be 
better to clarify that in some way, that its purpose will be 
solely consultative with respect to the issue of armed 
conflict, without staff?
    Mr. Baker. Well, the Congress, of course, could do that.
    The Chairman. I'm just wondering what your thought is on 
that. It strikes me that that may be a way of dealing with some 
of Senator Lugar's concerns, which I think are legitimate.
    Mr. Baker. That would be, I would think, Mr. Chairman, 
subject to the rules of the House and of the Senate; and 
whatever those--whatever the wishes of the two bodies were 
would be--would be, of course, I'm sure, embodied in the final 
legislation. It was not our intent to sit up here and write 
the----
    The Chairman. Write all the details.
    Mr. Baker. [continuing]. Details of those rules. But, we 
did expressly think it was worthwhile recommending that the 
leadership in this area remain with House Foreign Affairs and 
Senate Foreign Relations.
    Mr. Hamilton. I think the chairman--Senator Kerry, you've 
got it exactly right. This is not a legislative committee. 
You're not authorizing money. You are consulting with the 
President--that's your sole purpose--on the question of going 
to war. And so, it's a very limited purpose; obviously hugely 
important, but very limited.
    The Chairman. Well, we need to clarify that, because 
paragraph 4(h) actually gets specific about staff and what we 
might or might not do. So, I think this is worthy--this is 
exactly why we have the hearing, and it's a good thing to 
explore.
    Senator Kaufman.
    Senator Kaufman. Thank you, Mr. Chairman. I think this--
there is--as the panel said, there is no important--more 
important issue facing the Congress than how we deal with going 
to war, and I--having served this place for a long time, it's 
the single most difficult decision that a Member of Congress 
makes, and I'm sure it's the most difficult decision a 
President makes.
    The War Powers Act. I showed up in the Senate just about 
the same time as the War Powers Act, and it's been like a rugby 
football that's been kicked around for 36 years. And I think 
that--I can't think of better people to try to get at the heart 
of this than the people on this panel. And we're very, very 
fortunate to have you here and working on this thing. And I am 
very much in sympathy with your proposal. I think consultation 
is a good idea.
    But, if there's an--if the War Powers Act is a 300-pound 
gorilla in the room, there's a 1,000-pound gorilla in the room, 
and that is declaration of war, beyond the war powers. So, we 
decide we have the War Powers Act, but at some point the 
Congress act. And clearly we've not--we've only declared war 
five times in our history, and the last one was the Second 
World War. Secretary Christopher, you said there were 
discussions about war, declaration of war, and I just think I 
would be making a dereliction of duty if I didn't ask the three 
of you, kind of, your opinion on what we should do--how we deal 
with this declaration-of-war problem, which is--we just don't 
do it, and we probably should, and I'd just like your thoughts.
    Mr. Christopher. The Congress has decided, apparently, 
Senator, to go the route of authorization to conduct military 
operations, and that's taken the place of a declaration of war, 
and seem to give the President all the authority he feels he 
needs to go ahead. So, the declaration of war may well have 
fallen into disuse. And whether that's fortunate or 
unfortunate, I think that's the reality of where we are.
    And so, we're trying to provide a certainty here that 
there's consultation, even if there is not an issue about the 
declaration of war. So, we provide for this consultation 
whenever there are significant military actions contemplated, 
whenever there is combat action lasting longer than 7 days, 
without regard to whether or not there has been a declaration 
of war or a motion for a declaration of war.
    Mr. Baker. Congress has, in one way or another, authorized 
every action, I think, Senator Kaufman, in the last 50 years, 
with the exception of Grenada, Panama, and Kosovo, where there 
was not express authorization.
    Senator Kaufman. But, are you comfortable with the idea 
that we--I'm not saying we can do--probably need a 
constitutional amendment to change it--that essentially we have 
this perception that we've never been--everybody knows we're at 
war, but no one says we're at war. Does that bother you, 
though? I mean, you deal with international leaders. Is that a 
problem?
    Mr. Baker. Well, I don't think there is--it was not a 
problem, in terms of the conflicts that I was involved in, 
certainly not the first gulf war. Everybody knew that was a 
war, including--and all the foreign leaders treated it as such 
when we talked to them about it. So, I don't--I'm not sure--I 
would imagine that there are a lot of--there are a number of 
other arcane provisions in the Constitution that don't have 
ready application today.
    And so, I don't--I don't know that a lot is lost. If the 
Congress authorizes the action, in one way or another, is it 
really magic for them to do it by way of a declaration of war? 
I don't know.
    Senator Kaufman. OK. And I would follow up on the chairmen 
and ranking members. I think the staff question is an 
interesting question. When you have, you know, staff in the 
Foreign Relations Committee, Armed Services Committee, they're 
studying this every day, they're up on what's going on. To have 
another staff group off to the side that then meets, what 
you're going to have is a meeting--consultative meeting, the 
Senators are going to bring their own staff from their own 
committees. It just kind of gets more people in to the room and 
more people in the decision, which, as you have said, is the 
most important decision you make.
    Mr. Baker. You know, following up on what Chairman Hamilton 
said, it may be--it may be preferable for the people on the 
Joint Consultative Committee, the chairmen and ranking members 
of the relevant committees and the leadership of the House and 
Senate, to bring their own personal staffs and use them, 
although what we were seeking to provide here is enough support 
so that the Congress would feel that it has a more equal place 
at the table. And I think at least from my own view--and maybe 
Secretary Christopher and Chairman Hamilton have a different 
view--I thought there was--that it was primarily oriented 
toward providing information to that Joint Consultative 
Committee; intelligence information, particularly.
    Mr. Hamilton. Senator, to address your previous question, I 
think one of the advantages of the bill that we're proposing 
here is that it builds into the process broader support for the 
military action. Everybody agrees that the country's better 
off, and the President is better off, if he has broad support. 
Today, a President can commit military forces, really, without 
congressional involvement, and usually, of course, the Congress 
comes along and supports the President, but that's not always 
going to be true; it may be true most of the time.
    But, what happens here is, the President notifies the 
Congress. The Congress must act. To be blunt about it, in 
almost every case I can imagine, the Congress is going to 
support the President. It may be possible that it would be 
otherwise, but not likely because Presidents are able to carry 
the country on a national security issue, because they're the 
only ones that have the voice to reach all the people.
    Therefore, one of the things you want to do is to build as 
broad a support base as you possibly can for that action. And I 
think this provides the framework to do it.
    I can well imagine some Members of the House, I'm sure no 
Members of the Senate, would not want to vote on it. But, it's 
important, we think, that they do vote on it and that the 
Congress get on record, for the action or against the action, 
as they choose. The result, I think, as a practical matter, 
will be that a President will go into military action--lead the 
country into military action--with much broader support than 
otherwise might be the case.
    Mr. Christopher. Senator, let me follow up with just a 
thought or two on your very thoughtful question.
    It seems to me that the joint committee that we propose is 
a way for the President to talk to all the Members of Congress, 
not just one committee or another committee. It's a conduit for 
him to speak to all 535 members, which he lacks right now, and 
that staff would enable him--enable this committee to really 
get to the bottom of the President's request, and not have the 
information flow be dominated by what's known in the NSC down 
at the White House.
    Mr. Hamilton. That's a very important point. Presidents 
today do not know with whom to consult. Five hundred thirty-
five members. They know, of course, a few of them they need to 
consult with.
    Here, you provide a clear group of people with whom the 
President should consult, built into law, and a Member of the 
House or the Member of the Senate cannot complain, as they 
usually do, ``I wasn't consulted.'' They have voted for a 
mechanism for the President to consult with the Congress. And 
they can't complain, then, if the mechanism is followed.
    I think it's very important for a President to be able to 
know, ``With whom do I consult on this question?''--and not 
just do it hit or miss because Senator Kerry or Senator Lugar 
are key players. There are a lot of key players in the 
Congress. And this provides a President with a focal point for 
consultation.
    Senator Kaufman. I think it's an excellent proposal, and I 
think it's been interesting to sit here and watch, in the 
absence of real affirmation of the War Powers Act or the 
declaration of war, there's a kind of a kabuki theater that 
goes on, where the President, before they go to war or goes 
into action, says, ``I have the power. I can do this. I don't 
need you in the Congress to do it.'' But, in every single case, 
what have they done? They've come to the Congress, because of 
the point that they need that broad support. So, the system 
works, and I think it works well. We do--but, I couldn't agree 
with you more, I think knowing who to consult with, people 
understanding what their responsibilities are, is always good, 
no matter what kind of organization you have. So, I think this 
is especially good, and I think that what you've come up with--
I think the staff thing is something that we just--you know, we 
should take a hard look at.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Kaufman.
    Senator Corker.
    Senator Corker. I want to thank all of you for long years 
of public service and continuing to help us through these 
things, and certainly for your help in this particular issue. 
So, I have some--just some specific questions.
    In the event of the actionable event of disapproval, where 
the Congress says, ``We disapprove of war taking place,'' and 
the President--and even in the case--and I know this is very 
unlikely, because, Chairman Hamilton--the fact is that Congress 
generally does support the President in matters of this type. 
Sometimes they go on longer, and sometimes they lose that 
support. But, since we're not wrestling with the constitutional 
issue of who really has the authority, there still--is there 
still a remainder conflict there if the President decides, 
``Look, I've declared war, and whether Congress overrides me 
with more than 67 percent,'' or whatever--we still have that 
conflict, constitutionally, do we not, with this solution?
    Mr. Baker. You're always going to have that, Senator. 
Unless you get a constitutional amendment or unless you get the 
Supreme Court to rule on the matter, there's no other way to 
resolve the constitutional problem. But, it would be----
    Senator Corker. And----
    Mr. Baker. [continuing]. Very difficult for a President, if 
the Congress voted a Resolution of Disapproval, he vetoed it, 
and they passed it over his veto, it would be extraordinarily 
difficult for him to continue to support the military action 
politically within the country. When you lose--and, of course, 
the will of the American people is the final arbiter of our 
foreign policy in a democracy such as we enjoy. Once he loses 
that, he's going to be in trouble. So, it's the political 
imperative that would then kick in, but you will not have a 
resolution, you're quite right, of the underlying 
constitutional problem.
    Senator Corker. So, what we're really creating here is sort 
of the code of conduct that will exist between Congress and the 
President. It really is not going to have the effect of law. Is 
that correct?
    Mr. Baker. Oh, it would have the effect of law, I think. 
That's what we have in mind. It would be a statute that would 
be on the books. It could be challenged, I suppose, 
constitutionally, ex post facto, by either the--somebody in the 
Congress, but, you know, we've had many cases where Members of 
Congress have filed suit against the President, and the courts 
won't entertain the suit. Or, it could be challenged by the 
President, saying, ``I don't care whether they overrode my veto 
of the Resolution of Disapproval. I'm going forward anyway.'' 
Very risky business for the President.
    Senator Corker. So, let's--you want to say something?
    Mr. Christopher. I just wanted to say that if there was a 
Resolution of Disapproval passed by both Houses, and even if 
the President was able to avoid a veto and not have it 
overridden, nevertheless, the Congress could then, through its 
internal rules, have their will expressed. For example, 
Congress, I suppose, could have a rule that if there was a 
Resolution of Disapproval approved in both Houses, that 
thereafter there could be a point of order if there was any 
military appropriation. Congress has a great deal of power, of 
course, in the fiscal sense, so they can express their will. If 
there was a Resolution of Disapproval that either the President 
signed or was passed over his veto, that would be true even to 
a greater degree and Congress could express its will through 
failure to make appropriations.
    Senator Corker. So, we're sitting here today, and as we're 
sitting here, there are drones flying over Pakistan. And when 
the intelligence is appropriate and we actually know a target 
is zeroed in on, we're dropping Hellfire missiles on top of 
living rooms or whatever we might call where folks are occupied 
today. So, that's happening as we're sitting here. That's in 
the public domain. Everybody understands that. So, explain to 
me exactly, since we know that's ongoing, and it's been ongoing 
for a long time, how does that fit into this particular 
scenario that's been laid out?
    Mr. Baker. There are a number of exclusions and exemptions, 
Senator Corker. Some of those, the chairman mentioned, that 
might cover the situation you're talking about, actions taken 
by a President to repel attacks or to prevent imminent attacks 
on the United States, its territorial possessions, its 
embassies, its consulates, or its Armed Forces abroad; limited 
action of reprisal against terrorists or states that sponsor 
terrorists; covert operations. Some of this stuff that's going 
on perhaps has been authorized as a covert operation. Those are 
not covered by the statute, unless, as I said early on, they 
ripen into a significant armed conflict by virtue of having a 
continuing combat operation for more than 7 days.
    Senator Corker. So, to get back to Senator Lugar's question 
about Somalia and Yemen and lots of places where, ``al-Qaeda'' 
is and exists, actions like that, that continue to be surgical 
in nature, that don't necessarily involve lots of troops, if 
you will, those types of actions can continue ad infinitum 
without any types of action by Congress.
    Mr. Baker. Well, the only thing that's required under this 
statute of a President, to begin with, is consultation. So, no 
approval is necessary. Simply consultation. Those things could 
continue until they would ripen into a significant armed 
conflict, by virtue of a, I think, continuing combat operation 
for more than 7 days.
    Senator Corker. So, if we're moving down the spectrum to 
that, one of the exclusions also is the safety of our troops--
--
    Mr. Baker. Right.
    Senator Corker. [continuing]. That--so, it's hard to 
imagine many armed conflicts taking place in areas like that, 
which appears to be our greatest threat today--I mean, it seems 
that the types of wars we've had in the past are changing 
somewhat--so, it seems to me, if we were to--going to go into 
Somalia or Yemen or Pakistan, which even is more immediate--if 
we were to go into that kind of conflict, the safety of our 
troops would always be an issue, it seems, and especially in 
the surgical types of operations that we've had. So it seems 
like, in many cases, per the way this is drafted, the President 
would actually consult 3 days after it took place, at which 
time we're semiengaged.
    Mr. Baker. Right.
    Senator Corker. And I think that's where Congress finds 
itself many times. It's hard to undo an engagement that already 
has men and women, that we don't want to see harmed, in harm's 
way. Is that correct?
    Mr. Baker. That's correct. I think that's correct.
    Mr. Christopher. Senator, it's difficult to get into this 
refined definitional issue in this kind of a hearing. I suppose 
it might be argued that some of the actions in Pakistan at the 
present time would be covered by the resolutions after 9/11 
which authorized the President to take action against al-Qaeda 
and other terrorist groups. I'd say that's a very difficult 
definitional issue. There will always be difficult definition 
of issues as to what involves combat operations lasting longer 
than 7 days. But, after working on this issue for a long time, 
that was the best we could do to find some definition that had 
some meaning for the future.
    Senator Corker. Well, I think the contributions that have 
been made are outstanding, and I thank you for coming before 
our committee and doing this work. I think that what it also 
does is, raises lots of issues for us to think through as we 
try to refine it.
    I would just reiterate, just to be the third person to 
mention this--I think, to the extent you establish staff with a 
consultative group, I think it does, in fact, give the 
President, on one hand, one place to go. I think, in the 
process of giving the President one place to go, I think that 
the other committees of jurisdiction end up sort of becoming 
even more irrelevant, which we're already--I mean, I--in 
fairness, this committee's pretty irrelevant as it relates to 
those kinds of actions anyway. That's just the way it is. I'm 
not complaining. But, it seems to me that this committee, with 
staff, could end up creating a situation where Armed Services, 
Intelligence, Foreign Relations even become less relevant in 
the process. That could be one of the byproducts. I understand 
why, in fact, you did it, to make the knowledge at that 
consultative time equal, as much as possible. It's never going 
to be equal to the administrative branch, because they just--
look, they have the tools and--and should have the tools, OK--
but, I think there's a--there's a balance there that one ought 
to think about, and I wonder whether we'd be better off having 
specific individuals in each of these committees that are on 
the committee staff of Foreign Relations, of Armed Services, of 
Intelligence, that are--that make up--that are specifically 
aligned or part of that consultative group. I think that's a 
much better way of doing it. Otherwise, Chairman Kerry, you 
know, I--I think, in essence, you and Senator Lugar become far 
less relevant in the process.
    So, anyway, thank you very much. I see that my time is up. 
It looks like somebody might want to say something.
    Mr. Hamilton. Senator, may I say that I think these staff 
members really are an internal matter, that your judgment may 
be better than ours on the Commission, and we would recognize 
that.
    With regard to the definitional problems, you cannot define 
precisely everything that might occur. You just can't do it. 
And we wrestled a lot with the definitions. And we did the best 
we could. And we did not want to overdefine anything. But, at 
the end, it seems to me, what is really important here is that 
we require meaningful consultation. That's what's really 
important. And I think you can, to be blunt about it, just get 
lost in the definitions. You're trying to define the 
undefinable, in effect. And so, while attention has to be paid 
to those--and I don't want to denigrate that effort--you have 
to understand that you cannot get precise definitions for all 
of these possible engagements across a wide spectrum.
    At the end of the day, what you really have to focus on is, 
you've got a situation today where there is no requirement for 
a President to consult with Members of Congress on this issue. 
And we're saying, ``Mr. President, you must consult.'' And 
that, to me, is the overwhelming point.
    Mr. Christopher. Mr. Chairman, I wonder if I could use 
Senator Corker's question to make a broader comment.
    The Chairman. Absolutely.
    Mr. Christopher. When we finished our discussions in the 
committee, we had an important decision to make. Should we just 
make it a recommendation, put out a report like this, or should 
we try to draft a statute? And we felt it was more likely to be 
practically useful to draft the statute.
    Having done the draft, we don't have any great pride of 
authorship and we would be glad to work with Senators or their 
staff to try to perfect it and find some better ways to deal 
with these issues.
    I think we were right in trying to draft the statute so 
you'd have something concrete before you, but, as I say, this 
cannot be the final word, and the Congress will work its will, 
and we'll work with you so you can work your will.
    The Chairman. Well, thank you, Mr. Secretary.
    I don't think it's a--frankly, as complicated as maybe some 
people think it sounds, but I'm--I think the power of this is, 
No. 1, that you require the consultation. But, it's also 
equally as powerful that you require Congress to step up after 
a period of time and take a position.
    And, frankly, both serve all of our interests. I mean, 
the--you know, the term ``significant armed conflict,'' 
including any operation that either lasts 7 days or that the 
President knows is going to last 7 days--so, he comes to you, 
and, in the consultative process, says, ``Look, this is going 
to take a few weeks. It's a tough, big operation,'' so you know 
that you're in that posture. But, it also requires us to apply 
a certain amount of practical common sense and reasonableness 
standard here.
    I can easily see what's happening--I mean, we're not at war 
with Pakistan. I don't think, by anybody's definition, we'd say 
we're at war with Pakistan. We are at war in Afghanistan 
against al-Qaeda and Taliban efforts, et cetera, that are 
supportive of al-Qaeda. And--but the actions in Afghanistan--in 
Pakistan are sort of cross-border, that clearly would fit into 
either paragraph 1 or paragraph 2 of the limitations--all 
right, not paragraph 1 or 2, but those particular two 
limitations. And I think a reasonable standard applied to that 
finds that pretty quickly.
    What's important here is that we resolve something we 
haven't been able to do, which is get Congress to act. I mean, 
that's pretty significant. And it's in the interest of any 
President to consult, because a President who doesn't consult 
and doesn't have the support of Congress isn't going to be able 
to sustain this for very long, and then we're all weakened as a 
consequence of that.
    So, I think that, again, you know, we can work out the 
details of it, but I think the consultative piece--you know, if 
we're consulting as a group and it is specified who the 
President is going to consult with, we're going to bring our 
existing staff, either from this committee, Carl Levin, John 
McCain, et cetera, from Armed Services, Intelligence people. 
We're all going to consult, anyway, because this is big stuff. 
It's important stuff that has lives at stake and the interests 
of the country. So, I think the staff thing is the least of our 
issues. I think, just keeping it clean and simple and setting 
it up so you require the consultation, and then have this vote 
structure, is a very significant step forward, because we've 
been at absolute gridlock on this issue for 35, 40 years now--
30 years.
    Senator Corker. If I could respond to Secretary Hill, I 
want to say that, from my perspective--and I appreciate what 
he's saying, ``no pride of ownership''--I think the offering of 
legislative language is a huge contribution. I think, 
otherwise--and I think the fact that you've done that actually 
allows us to think through some of these details that otherwise 
we wouldn't. So, I thank all three of you, and I certainly 
appreciate your being here today.
    Senator Kaufman. Mr. Chairman, I'd just----
    The Chairman. Senator Lugar and I want to thank you for 
protecting our relevancy here. We're particularly grateful.
    Senator Corker. Well, I will say this, that I don't think 
the Foreign Relations staff, because of the way we deal with 
foreign aid, deal with other kinds of things, just willy-nilly 
passing out program after program, and not really looking at 
eliminating the ones that we feel are less--I think we do, in 
fact, render ourselves very irrelevant on some of these things. 
And I know that you want to change that, and I----
    The Chairman. Appreciate the----
    Senator Corker. [continuing]. Appreciate it.
    Senator Kaufman. Mr. Chairman, just one other comment, and 
that is, you know, like, for instance, a covert action has to 
be approved by the Intelligence Committee, so I think one of 
the things we can do on this--and it's not as big a problem as 
I think you think it is, because the Congress does have power 
in a lot of these areas, and it's our job to go through and 
find out where different Congress committees have to approve 
different actions by the President, and we all know that one of 
the big things is the power of the purse strings. I mean, 
eventually----
    Mr. Baker. Right.
    Senator Kaufman. [continuing]. They've got to get the 
appropriations approved. So, this--think this is an excellent, 
excellent proposal, and I think when you look at it in the 
total of the Congress's responsibility and the Congress's 
powers in this, wrestling with the President, I think this is 
going to turn out to be something that'll be--the definitional 
problems are not as great as they may sound.
    Mr. Baker. May I make one point, Mr. Chairman, on 
relevancy? I think this proposal of ours--now, of course, I'm 
biased, but--I think this offers an opportunity for this 
committee to take the lead on a matter that would enhance the 
relevancy, Senator Corker, of this committee. You have a 
statute in this area, which is a joke. It is observed more in 
the breach than in the observance. And at the very least, that 
is not good in a nation of laws, that our primary statute in 
this area is observed more in the breach than in the 
observance.
    So, if we can replace that with something that's workable 
and practical and pragmatic, that enhances consultation between 
the branches, that alone, I think, will help the relevancy of 
the committee, if this were the movant committee in doing that.
    The Chairman. Senator Feingold, thanks for your forbearance 
for this little dialogue. We appreciate it.
    Senator Feingold. Thank you, Mr. Chairman.
    Obviously, we're so fortunate to have such an exceptionally 
distinguished panel. And thank you for all your work on this 
subject.
    I'd like to use some of my time to just make a statement 
and then ask a couple of questions.
    As we continue to grapple with the profound costs of 
rushing into a misguided war, it is essential that we review 
how Congress's war powers have been weakened over the last few 
decades, and how they can be restored.
    The war in Iraq has led to the deaths of thousands of 
Americans and the wounding of tens of thousands, and will 
likely end up costing us a trillion dollars. What if we had had 
more open and honest debate before going to war? What if all 
the questions about the administration's assertions had been 
fully and, to the extent appropriate, publicly aired? So, 
clearly any reforms of the War Powers Resolution must 
incorporate these lessons and foster more deliberation and more 
open and honest public dialogue before any decision to go to 
war.
    And I appreciate that attention is being drawn to this 
critically important issue, which, of course, goes to the core 
of our constitutional structure. It's a conversation that we 
need to continue to have.
    But, I am concerned that the proposals made by the Baker-
Christopher Commission cede too much authority to the executive 
branch in the decision to go to war. Under the Constitution, 
Congress has the power ``to declare war.'' It is not ambiguous 
in any way.
    The 1973 War Powers Resolution is an imperfect solution. 
However, it does retain Congress's critical role in this 
decisionmaking process. The Commission's proposal, on the other 
hand, would require Congress to pass a Resolution of 
Disapproval by a veto-proof margin if it were unhappy with the 
President's decision to send our troops into hostilities. That 
means, in effect, that the President would need only one-third 
of the Members, plus one additional Member of either House, to 
continue a war that was started unilaterally by the President. 
Now, that cannot be what the Framers intended when they gave to 
the Congress the power to declare war.
    Since the War Powers Resolution was enacted, several 
Presidents have introduced troops into battle without obtaining 
the prior approval of the Congress. The campaigns in Granada 
and in Panama, are a few examples. Neither of these cases 
involved imminent threats to the United States that justified 
the use of military force without the prior approval of 
Congress. The simple solution to this problem would be for the 
President to honor the Constitution and seek the prior approval 
of Congress in such scenarios in the future.
    And, while the consultation required by the War Powers 
Resolution is far from perfect, I think it is preferable to the 
Commission's proposal to establish a consultation committee. If 
this bill had been in place before the war in Iraq, President 
Bush could have gone--could have begun the war after consulting 
with a gang of 12 Members of Congress, thereby depriving most 
of the Senators in this room of the ability to participate in 
those consultations as we did in the runup to the Iraq war.
    The decision to go to war is perhaps the most profound ever 
made by our Government. Our constitutional system rightly 
places this decision in the branch of government that most 
closely reflects the will of the people. History teaches that 
we must have the support of the American people if we are to 
successfully prosecute our military operations. The requirement 
of prior congressional authorization helps to ensure that such 
public debate occurs and tempers the potential for rash 
judgment. Congress failed to live up to its responsibility with 
respect to the decision to go to war in Iraq. We should be 
taking steps to ensure it does not make this mistake again. We 
should be restoring this constitutional system, not further 
undermining it.
    Mr. Baker, part of the premise of the Commission's finding 
is that several Presidents have refused to acknowledge the 
constitutionality of the War Powers Resolution. And I note 
that, of course, in practice, most do honor the resolution. In 
your view, does the President's Commander in Chief authority 
give him the authority to ignore duly enacted statutes?
    Mr. Baker. Duly enacted statutes? Not in my view. On the 
other hand, there has been--you said ``most Presidents,'' 
Senator Feingold. All Presidents have refused to acknowledge 
the--or, all Presidents have questioned the constitutionality 
of the War Powers Resolution.
    Senator Feingold. Right.
    Mr. Baker. Both Democrat and Republican.
    Senator Feingold. Right. I simply said ``several Presidents 
refused.''
    Mr. Baker. Yes.
    Senator Feingold. Right. But, most have honored the 
resolution, in practice.
    Mr. Baker. Well, that's not really quite accurate, sir. 
They send--they file reports in keeping with--the language is 
``in keeping with,'' but never has one President filed a report 
``pursuant to'' the War Powers Resolution.
    Senator Feingold. Well, I--and, nonetheless, I appreciate 
your answer to the basic question, and it seems to me that much 
of the ambiguity you attribute to the War Powers Resolution 
would be resolved if future Presidents simply abided by the 
resolution. That would help solve the ambiguity.
    Mr. Hamilton, before the Iraq war, every Senator had the 
opportunity to at least review the intelligence assessments on 
Iraq, particularly the October 2002 NIE. I concluded that there 
was insufficient evidence to justify the decision to go to war. 
Under your bill, wouldn't the full Congress have even less 
access to the intelligence supporting the decision to go to 
war? Wouldn't that intelligence be limited to the gang of 
members on the consultation committee?
    Mr. Hamilton. With the consultative committee, I think you 
expand the number of members that would be brought into the 
discussions involving the highest level of intelligence. In 
other words, you'd have more members involved, under our 
proposal, that you do now, because you have a----
    Senator Feingold. But--well, I was a--I was a relatively 
middle, junior member of the Foreign Relations Committee. It 
was not, at that time, a member of the Intelligence Committee.
    Mr. Hamilton. Yes.
    Senator Feingold. At some point, I was afforded the 
opportunity to go down to a secured room and to hear directly 
from the CIA people whether they felt the same thing that we 
were hearing publicly. And I've got to tell you, their tone, 
when they were trying to express these arguments that the 
President was making, was rather tepid. And it gave me a 
feeling that something was wrong here. And I would, apparently 
under this scenario, not have been a part of that process. Now, 
I'm not saying my role was critical, but I did end up being one 
of the people who went to the floor immediately and said, ``I'm 
not buying this al-Qaeda connection. I'm not buying the notion 
that Saddam Hussein is likely or ready to attack the United 
States.'' It appears that somehow somebody in my situation 
would not necessarily be a part of that pre-, you know, 
military action process.
    Mr. Hamilton.
    Mr. Hamilton. Well, I think, under the law today, the 
President doesn't even have to consult with Members of Congress 
before he takes you into war, because the provisions in the War 
Powers Resolution are very vague with regard to consultation.
    We expand greatly the number of Members who would be 
involved in that consultative process here.
    Senator Feingold. It appeared, though, in this circumstance 
of Iraq, that this was part of the consultative process, that 
our access to the people from the President's CIA was pursuant 
to a discussion that led to a vote of the full Senate.
    Mr. Hamilton. Well, the other----
    Senator Feingold. So, this was a process where all 
Members--well, perhaps not all, but at least members of the 
Foreign Relations--all members of the Foreign Relations 
Committee were given the opportunity to participate in that 
kind of----
    Mr. Hamilton. And the proposal that we're putting before 
you--Members of Congress are required to vote on it.
    The Chairman. Senator----
    Mr. Hamilton. You didn't have that--you don't have that 
requirement, under present law.
    The Chairman. Yes, there is no requirement, under the 
present law, at all. What happened is, we did it, under the 
prerogatives of each of the committees, because the committee 
chairs and ranking members understood that that was part of the 
responsibility.
    Nothing in here--and we discussed before you came here--
about this consultative component being strictly in fulfillment 
of the requirement that the President let us know what he's 
thinking of doing so that those other committees--that's why 
each of them are part of it--the Intelligence Committee, the 
Armed Services Committee, the Foreign Relations Committee--
would then go about their normal business of involving all of 
their members. I mean--but, there no statute that required that 
for you, either, at this point.
    Senator Feingold. I'd like to believe that, Mr. Chairman, 
but it strikes me that this provides an opportunity, that the 
President doesn't currently have, to say, ``Look, I went to 
this consultative process that's provided by this new statute, 
so I have even less need to go through a formal vote,'' which, 
you know, as we just talked about, most Presidents have 
decided--President Bush, on the first gulf war, even though he 
may not have taken the view that he had to do it, he went ahead 
and did it. I think this creates a process that could end-run 
the feeling on the part of a President that he needs to go 
through a process that would actually involve this kind of 
participation. But, I'm not saying this doesn't literally 
require it. It's what----
    Mr. Baker. But, Senator----
    Senator Feingold. [continuing]. Effective--yes, Mr. Baker.
    Mr. Baker. [continuing]. We require a vote within 30 days, 
so the President is going to be facing a vote of the Congress. 
And if the vote is a Resolution of Disapproval, that's going to 
have very serious adverse impacts on the President's ability--
--
    Senator Feingold. But, in the case of Iraq, of course----
    Mr. Baker. Well, that--of course, you know----
    Senator Feingold. Thirty days after it would have been not 
too helpful.
    Mr. Baker. Well, that's true, but the President--both 
Presidents went to the Congress to get approval, and actually 
obtained approval.
    Now, back to the point you made about the observance of a 
statute duly enacted and whether a President can question its 
constitutionality, they've--there's always been the ability of 
Presidents to question constitutionality. And in this area, it 
has consistently been questioned by both Democratic and 
Republican Presidents.
    Presidents have sent troops abroad, Senator Feingold, 264 
times, during which period the Congress has declared war 5 
times. So, we're faced with a situation--we expressly--I think, 
before you arrived, we made it--we had a dialogue here about 
the fact that we have expressly preserved the rights of 
Congress to make the argument that I think you're making, and 
the right of the President to make the argument that all 
Presidents have made since the War Powers Resolution was 
passed, that the Constitution gives either (A) the Congress the 
authority, or (B) the President the authority. So, we expressly 
reserve those constitutional arguments, put them to the side, 
because they are not going to be solved in the absence of a 
constitutional amendment or a Supreme Court opinion. So, we 
don't prejudice either branch. What we're trying to do is find 
a workable solution here that will improve the relationship and 
the consultation that takes place between the President and 
Congress when the Nation's going to war.
    Senator Feingold. I respect the effort, and I respect the 
intent. And it may well work that way. My concern--and I know 
my time's up, Mr. Chairman----
    The Chairman. No, take your--no problem.
    Senator Feingold. [continuing]. Is that I witnessed, as a 
non-Senator, the excellent debate that was held on the floor of 
the United States Senate prior to the first gulf war. I also 
was involved in the truncated and, unfortunately, weak debate 
prior to the Iraq war. But, any process that could somehow make 
a President feel that he did not need to go through that 
process prior to such a major action would trouble me. So, 
that's how I need to review this. Could this lead to that 
practical effect, as opposed to the literal effort you have 
made to avoid such a consequence?
    Mr. Baker. Well, I don't think so----
    Senator Feingold. That is the nature of my concern.
    Mr. Baker. Well, my--let me just quickly answer it. I don't 
believe so, because the President has that power today. So, 
we're not--in this effort, we--I don't see this as giving the 
President something he doesn't have today.
    Senator Feingold. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Feingold. Those are--an 
important inquiry, and I think it's worth examining the sort of 
Iraq experience, in terms of the vote up front versus late.
    But, there may be some way, Mr. Secretaries and Mr. 
Chairman, in terms of the definitions--I know you all have 
struggled with this, and maybe we can spend a minute sort of 
reviewing that, as to whether you can, you know, cover those 
rare circumstances where you have such a level of deployment 
and such a level of confrontation--i.e., I mean, the invasion 
of a country is a pretty big deal. There ought to be some way--
I mean, that is certainly separate-able from about 200-and-some 
of those instances of use of force. And so, maybe there's a way 
to try to have a balance here, and I think we ought to sort of 
examine that.
    At any rate, are there any further questions from any 
colleagues?
    [No response.]
    The Chairman. There will be some questions for the record, 
if you don't mind. I think we want to try to fill this out a 
little bit. And so, I'm going to leave the record open for a 
week, and if you--I hope we don't overly impose on your 
goodwill here, but I think there will be a few questions for 
the record that might be helpful.
    Mr. Baker. Chairman, we'll be glad to respond to those 
questions.
    The Chairman. Again, we really thank you. This is just a 
huge and complicated topic, as we can see, but I think you've 
made a major, major contribution to our thinking about how to 
proceed forward and we want to work with you very closely to 
see how we can take this further. So we thank you for coming 
today.
    Mr. Baker. Thank you, sir.
    The Chairman. We stand adjourned.
    [Whereupon, at 11:38 a.m., the hearing was adjourned.]
                              ----------                              


       Additional Questions and Answers Submitted for the Record


   Responses of Hon. Warren M. Christopher to Questions Submitted by 
                      Senator Russell D. Feingold

    Question. Mr. Christopher, in your view, since 1973, have past 
Presidents always sought advance congressional approval of military 
operations in all situations in which such approval would have been 
feasible?

    Answer. Presidents have not always sought advance congressional 
approval for military operations, including the sorts of operations 
defined under our proposed statute as ``significant armed conflicts.'' 
Examples of Presidents not seeking or obtaining formal approval would 
include the military actions in Grenada in the 1980s and Panama in the 
early 1990s. And while President Clinton sought congressional approval 
for the military actions he initiated in the former Yugoslavia in the 
1990s, no express approval was obtained before those significant armed 
conflicts began. In other instances, of course--including both Iraq 
wars and the war in Afghanistan--Presidents have obtained advance 
approval. However, even when there has been advance approval or 
consultation--and this goes back to the Vietnam war and before--there 
have been claims that the consultation or approval was rushed or based 
on incomplete information. Also, there have been charges that the 
consultation after Congress gave the initial approval has been lacking, 
either through fault of the President or Congress.
    In any event, the focus of our proposed statute is to ensure a 
meaningful exchange of views and formal consultation, both at the 
outset, and throughout any conflict in which the country engages. We 
call for Congress within 30 days of the initiation of a significant 
armed conflict to vote up or down on the action, so its will is known. 
We believe that the Joint Congressional Consultation Committee that our 
statute creates will allow the President to share information with the 
Congress more directly and obtain its meaningful, independent advice. 
We also think the full Congress will work with the Joint Committee and 
its members to obtain the necessary information to vote on resolutions 
of approval or disapproval. The Joint Committee will also serve as a 
conduit for the full Congress and its Members to express their views to 
the White House.
    All in all, we think our proposed statute will significantly 
improve the current state of affairs. We do not believe the War Powers 
Resolution of 1973 has encouraged or facilitated meaningful 
consultation (just the opposite). And we do not believe the 1973 law 
has encouraged or compelled Presidents to seek congressional approval.

    Question. Mr. Christopher, the consultation and approval procedures 
of your bill only apply to significant armed conflict which does not 
include ``limited acts of reprisal against terrorists or states that 
sponsor terrorism.'' Given that the use of military force against 
another government could provoke an extended military conflict and is 
defined as an act of war under the laws of armed conflict no matter how 
``limited'' it may be, wouldn't it be preferable to seek prior 
congressional approval whenever possible?

    Answer. Prior approval is usually ideal for a number of reasons, 
but sometimes it is impossible to obtain as a practical matter because 
of the need for secrecy or other emergent circumstances. Most 
constitutional scholars agree that the President has some latitude to 
act unilaterally to protect the country's interests. Section 4(A) of 
our proposed statute encourages the President to consult regularly with 
the Joint Congressional Consultation Committee, even with regard to 
such matters.
    Our statute recognizes, however, that even short, swift military 
actions can lead to longer engagements. Thus, sections 3(A)(ii) and 
4(B) require the President to consult and trigger the congressional 
voting mechanisms in section 5 in the case of ``any combat operation by 
U.S. armed forces . . . expected by the President to last more than a 
week.'' One might cynically argue that Presidents will purposefully 
underestimate the time required for a particular operation so as to 
avoid the consultation and voting requirements in sections 4 and 5. 
However, any statute in the war powers area must, at some level, assume 
the good faith of the parties involved, and Congress always has 
political means at its disposal to address such concerns. The 
enforcement provisions established in the 1973 resolution, while 
defended as good policy by some, have never been invoked by the full 
Congress or enforced by the courts.
    In any event, section 4(B) of our proposed statute makes clear that 
if a ``limited act of reprisal against terrorists''--one of the sorts 
of actions described in section 3(B) of the statute--``becomes a 
significant armed conflict as defined in section 3(A) [by reason of 
lasting more than seven days], the President shall similarly initiate 
consultation with the Joint Congressional Consultation Committee,'' 
pursuant to section 4, and section 5's voting procedures are triggered 
as well.

    Question. Mr. Christopher, do you believe that congressional 
authorization to fight al-Qaeda extends to the entire world, including, 
for instance, U.S. military strikes in Somalia? What are the 
limitations on the global use of such authorization and what is 
Congress's role in defining those limitations?

    Answer. The September 18, 2001, joint resolution that Congress 
enacted, Public Law 107-40, S.J. Res. 23, provides (italic added):

          That the President is authorized to use all necessary and 
        appropriate force against those nations, organizations, or 
        persons he determines planned, authorized, committed, or aided 
        the terrorist attacks that occurred on September 11, 2001, or 
        harbored such organizations or persons, in order to prevent any 
        future acts of international terrorism against the United 
        States by such nations, organizations or persons.

    Such hypothetical questions are hard to answer given the limited 
facts, but in light of the open-ended language of the joint resolution, 
if the President found there was an organization in Somalia that aided 
the September 11 attacks and that organization posed a current threat, 
one could certainly argue that the authorization extends that far.
    Congress can always limit or define the scope of its 
authorizations--either by time or geographic scope. Presidents may 
debate the constitutional force of such limitations, but Congress, in 
drafting its authorizations, controls the pen and can be as clear as it 
wants in what is being authorized. In the first Iraq war, for example, 
Congress authorized the President to take military action against Iraq, 
but limited the authorization to enforcing existing U.N. Security 
Council resolutions. Thus, once the U.S.-led coalition expelled Iraq 
from Kuwait, there was a strong argument to be made that had the armed 
forces deposed the Iraqi Government, the President would have been 
acting beyond his congressional authorization. Congress and President 
Ronald Reagan's administration also worked closely on the United States 
peacekeeping mission in Lebanon. After negotiations between 
congressional leaders and the White House, Congress specifically 
authorized American troops to remain in Lebanon for 18 months. During 
the Vietnam war, Congress passed measures, including what is known as 
the ``Fulbright Proviso'' in the War Forces-Military Procurement Act of 
1971 that placed limitations on providing military support and 
assistance to the Governments of Cambodia or Laos. This Proviso was 
criticized, however, as being unclear. In recent years, Senator Byrd, 
for example, proposed a sunset, or time, limitation on the recent Iraq 
War Authorization. That amendment was rejected.
                                 ______
                                 

   Response of Hon. Lee H. Hamilton to Question Submitted by Senator 
                          Russell D. Feingold

    Question. Mr. Hamilton, in your view, were the consultations with 
the Gang of Eight on President Bush's warrantless wiretapping and 
interrogation programs sufficient to ensure adequate oversight? If not, 
would we be well advised to extend a similar oversight structure of the 
power to go to war?

    Answer. Our Commission has gone out of its way not to call balls 
and strikes, particularly concerning recent events.
    The Gang of Eight structure is different than the one proposed in 
our statute. We propose involving a larger group (20 key leaders in 
Congress from both sides of the aisle) and requiring up-or-down votes 
of the whole Congress concerning any significant armed conflict, as 
well as smaller conflicts that grow into significant ones. We think our 
procedure provides not only a considerable amount of oversight, but a 
good and productive forum for the open and timely exchange of views.















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