[Congressional Record Volume 140, Number 132 (Tuesday, September 20, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                       HAITI WAR POWERS AMENDMENT

  Mr. FEINGOLD. Mr. President, I endorse those provisions of the 
proposed sense-of-the Senate resolution which state that the American 
people and the Congress support the United States Armed Forces now 
engaged in the mission in Haiti.
  Of course the American people and the Congress support our men and 
women in uniform, wherever their Government sends them. There should 
never be any question as to that point.
  But I want to make it absolutely clear that I do not necessarily 
endorse the invasion of the Island of Haiti by the United States 
whether by force or under an agreement without explicit congressional 
authorization.
  The New York Times in an editorial published today put the issue 
succinctly:

       Even with no invasion, Mr. Clinton is deliberately placing 
     U.S. forces in harm's way. He should seek Congressional 
     approval now.

  I believe that we should make it clear, here and now, that the 
Congress of the United States has a direct role and responsibility to 
either ratify or repudiate the use of United States military troops in 
the action taking place in Haiti. At some point, therefore, I intend to 
send to the desk an amendment to the proposed resolution.
  The amendment I would offer is straightforward and simple. It states 
that it is the sense of the Senate that Congress should vote on or 
before October 15 on a measure containing specific authorization for 
the use of United States Armed Forces in Haiti. As we all know, October 
15 is the final deadline under the new agreement for the military 
dictators to resign. By that time, we ought to vote up or down on 
whether the Congress of the United States is willing to share 
responsibility for this military action. To fail to do so is to shirk 
our responsibility under the Constitution and to fail to faithfully 
discharge our duties of office. It also deprives the President of the 
support he truly needs, whether his advisors agree or not, to 
effectively carry out this mission.
  Some of my colleagues in the House yesterday raised the issues of 
congressional authorization of troops both before and after this 
weekend's events, but said they should be saved for another day. 
However, I would say that while today is properly dedicated to 
complimenting the peaceful resolution brokered by the Carter team, we 
certainly must address the issue of congressional authorization for the 
use of armed force very soon. This is an issue, while most recently 
tested in the context of the Haitian invasion, goes beyond any 
particular incident or military adventure.
  The entire process by which the President went about building support 
for the invasion illustrates that we lack a suitable operating 
framework within which the Congress and the President can work together 
to decide when this Nation will use its Armed Forces abroad. In our 
system, no one person is vested with the sole decision of when and 
where to commit U.S. Armed Forces. And no one person can decide when or 
when not he needs the support of Congress for such operations. That is 
the essence of the Constitution and is illustrated in the War Powers 
Act. However, last Sunday, only one person--albeit the Commander in 
Chief--made the decision about launching troops into Haiti.
  When all of the nonmilitary avenues for ending power struggles are 
exhausted, military force is an alternative. We often seek multilateral 
arrangements or international support for the use of force--such as the 
U.N. resolution the President used to build support for the Haiti 
invasion. But that alone, as we have all voted here on this floor, does 
not constitute authorization for the use of armed force under the U.S. 
Constitution. The U.S. Congress is supposed to have a central role in 
this process.
  One can hardly mention this topic without appearing to debate the War 
Powers Resolution of 1973. When that is not my intention today, the War 
Powers Resolution is a good starting point. The drafters of this 
resolution said that their purpose was to fulfill the intent of the 
Framers of the Constitution and to ensure that the collective judgment 
of both the Congress and the President would apply to the introduction 
of U.S. Armed Forces into hostilities. In terms of these goals, 
I believe, unfortunately, that the War Powers Resolution has failed to 
achieve its very worthy purpose.

  In essence, the War Powers Resolution has not fulfilled its intended 
purpose. In today's world, when candor and cooperation seem paramount, 
the War Powers Resolution has become a bit like the family relative 
that nobody wants to talk about. But we need to talk about it. Our 
legislative horizons need to move beyond the Vietnam era when a 
President could secretly deploy thousands of troops in cold war 
struggles outside of the view of a CNN camera. We must move into a 
frank debate about what we need in today's world because the dangers of 
not addressing the matter head-on continue to mount.
  I believe a suitable war powers framework must start with an 
agreement between the President and the Congress that the President 
needs the backing of a statutory authorization for decisions to commit 
U.S. Armed Forces into hostilities. This means not just funds 
appropriated in some general way. I believe the President needs a 
specific authorization. How can we insist upon authorizing the most 
ordinary domestic programs but then duck the extraordinary question of 
sending American men and women into combat or situations which may lead 
to combat if things go awry? The President clearly understands the 
importance of being able to marshal public and congressional support 
for such military commitments. I know he also understands how quickly 
public support can evaporate once the bodies start coming home--what 
one of our colleagues, the senior Senator of Ohio, John Glenn, has 
called the Dover, DE test; that is, when the body bags pile up at 
Dover, DE, realizing the impact of loss of American life for our cause. 
Make no mistake, congressional views will quickly follow the public in 
the Dover, DE test unless the President has our statutory authorization 
up front.
  In addition, the President should understand that a statutory 
authorization would completely sidestep the flawed War Powers 
Resolution because the entire law sort of becomes moot when the 
Congress authorizes a military action by act or joint resolution. The 
President says he wants to eliminate the 60-day withdrawal provisions 
of the War Powers Resolution; a statutory authorization along the lines 
I have suggested would do just that.
  There is only one acceptable excuse for a President to act without 
statutory authorization and that is to respond to legitimate 
emergencies. Given the transparency with which the White House prepared 
the potential invasion of Haiti, in addition to the absence of any 
immediate emergency, it is very difficult to sustain any argument that 
the President did not need statutory authorization in this case.
  But I want to stress that I recognize that we must provide the 
President with the flexibility needed to respond when real emergencies 
occur. The Constitution foresaw and history has since demonstrated that 
there will continue to be legitimate emergencies in which the President 
must respond in the defense of the country or in response to urgent and 
vital interests abroad. Congress owns the war power. But what I would 
like to say today is that the Congress can loan it to the President in 
such emergencies. The War Powers Resolution handles such emergencies 
very crudely. It first defines these legitimate emergencies in a way 
which even the late Senator Javits--the Senate sponsor of the War 
Powers Resolution--admitted was incomplete and then it gives a 
President a completely free hand for 60 days to respond to any world 
event in whatever way the President determines to be appropriate. I do 
not think in this respect the War Powers Resolution is consistent with 
either the intent of the Framers of our Constitution or with most 
Presidential practice prior to the cold war. So we must do better.
  I understand that there are dangers in this world which the Framers 
could not foresee. While that may change the letter of our working 
definition of legitimate emergencies, it ought not change the spirit. 
Legitimate emergencies should be situations whose gravity threatens our 
borders, the safety of Americans, our military installations abroad, or 
other matters of supreme national interest. Moreover, these situations 
should demand a response of such decisiveness, secrecy, or dispatch 
that is only provided by the President as Commander in Chief. But even 
if such an emergency occurs, our tradition since the Constitution has 
been for the President to act and then seek so-called indemnification 
from the Congress.
  So to illustrate, I would expect, for instance, President Clinton to 
respond promptly to a North Korean invasion of South Korea that 
threatened United States forces. I would then expect him to seek proper 
authorization, promptly thereafter. President Truman decided not to do 
that in 1950 and his decision is widely viewed as the most egregious 
abuse of constitutional war powers in the history of the United States. 
President Eisenhower's more constructive working relationship with 
Congress was tempered by the Truman experience. Even President Johnson, 
the father of the Tonkin Gulf resolution, considered Truman to have 
made a serious error in not seeking congressional authorization. As one 
U.S. Congressman has said:

       Allow the President to invade a neighboring nation, 
     whenever he shall deem it necessary to repel an invasion, and 
     you allow him to do so, whenever he may choose to say he 
     deems it necessary for such purpose--and you allow him to 
     make war at pleasure.

  Those were the words of Congressman Abraham Lincoln. Years later, at 
the outbreak of the Civil War, President Lincoln himself deployed U.S. 
Armed Forces without the authorization of Congress but later told the 
Congress that these actions--

       Whether strictly legal or not, were ventured upon under 
     what appeared to be a popular demand and public necessity, 
     trusting then, as now, that Congress would readily ratify 
     them.

  Thus Lincoln explicitly sought congressional approval by statute of 
his emergency actions. He never claimed to have full and independent 
constitutional support for his initiatives.
  Congressional ratification was an essential legitimating step for his 
actions. Later the Supreme Court upheld his action in the famous 1863 
prize cases. Mr. President, I would contrast President Lincoln's 
sophisticated understanding of constitutional war powers with the 
following more recent statement by former-President Bush who said:

       I didn't have to get permission from some old goat in the 
     United States Congress to kick Saddam Hussein out of Kuwait.

  Or with President Clinton's August statement on Haiti that--

       I would welcome the support of the Congress, and I hope I 
     have that. Like my predecessors of both parties, I have not 
     agreed that I was constitutionally mandated to get it.

  So, Mr. President, Congress needs certain assurances of good faith in 
order to support a President in potential emergencies. We can 
acknowledge legitimate emergency reasons for a President to act 
unilaterally without turning our back on who owns the war power under 
the Constitution.
  Unfortunately, there have been too many cases in which we have been 
asked to make loans of the war power in other than emergency 
situations. As many of my colleagues have said over the last several 
weeks regarding Haiti, it is not enough to seek the approval of the 
U.S. Security Council or of a regional alliance like the OAS or NATO 
only then to ignore the role--the central role--of the United States 
Congress.
  I also recognize that power-of-the-purse legislation relating to the 
commitment of U.S. Armed Forces is an available remedy, but not an 
ideal model. The distinguished President pro tempore, Senator Byrd, in 
testimony before the Foreign Relations Committee last February, likened 
the power of the purse to a watering hole in the forest to which all 
the animals eventually must come to drink. I agree with the 
distinguished President pro tempore's characterization; the power of 
the purse is an excellent and effective tool in most matters for which 
we appropriate public funds. But I worry, nonetheless, about how close 
we are coming to a constitutional crisis when we rely on such measures 
as a last resort in a war powers struggle with the President. In a way, 
it illustrates our level of desperation about preserving our 
constitutional war power responsibilities and they risk infringement 
upon the President's equally valid constitutional responsibilities as 
Commander in Chief.
  These extreme gestures usually come in two forms: attempts to end 
ongoing military operations and attempts to preclude future military 
options. In September 1993, for instance, Senators Byrd, Mitchell, and 
others offered an amendment which extended the President's Somalia 
reporting deadline into October and set a November deadline for 
congressional authorization. By implication, funding for United States 
Armed Forces in Somalia would be cut by November unless Congress 
authorized them to remain. I opposed that measure as an 
unwise extension of an unwarranted loan of the congressional war power 
in the February 1993 resolution. I expect we will find ourselves in a 
similar situation regarding this Haiti invasion.

  We can learn much from last fall's Somalia experience. One lesson is 
that without a specific and well-crafted statutory authorization that 
we could then modify or renew, the only remaining tool for affecting 
ongoing military operations is the power of the purse.
  So, Mr. President, we need to focus on some very specific questions 
about the current occupying force in Haiti. This is an unprecedented 
situation, where U.S. troops are occupying a country, and working with 
the foreign force to do it. We will have almost 15,000 troops in Haiti 
definitely in harm's way. Thankfully, this is not the invasion force we 
had thought it would be at this point, but it is a use of force which 
should require congressional concurrence. The question to ask regarding 
this operation is, ``Should the President alone have the authority to 
put almost 15,000 lives in danger for a risky operation in Haiti?'' 
That is the question, and my answer is, I think not.
  A second question is whether our troops face imminent hostilities or 
are likely to face at some point in time. While cooperating with 
Haitian Armed Forces, it is arguable that they will not, but the 
situation is fluid and after October 15, we may face a dire situation 
if the military leaders do not step down.
  Let us focus for a moment on the risks that our troops will face in 
this action.
  First, the possibility of mob violence and looting. There is reason 
to believe that there may be activity such as that which occurred in 
Panama City after the U.S. invasion in 1990, as thousands of citizens 
took advantage of the disarray surrounding the arrival of U.S. troops 
to engage in widespread looting. Given the economic strain Haiti has 
suffered under the U.N. sanctions, this is a very real possibility.
  Second, urban street-to-street combat. Just as Aideed loyalists in 
Mogadishu used small arms to hamper U.S. and U.N. troops, our troops 
could again become the targets of urban assaults.
  So long-term resistance or guerrilla warfare. Haiti is a largely 
rural country with a rough terrain and poor infrastructure. If the 
situation turns bad, we could be facing very hostile circumstances for 
a prolonged period.
  We all hope and pray that this will not be the case.
  But we should not ignore the very real possibility that 15,000 
American service men and women have been sent to a foreign soil, armed 
and prepared to fight. Congress ought to either ratify that action or 
reject it; we should not stand by pretending that the deployment of 
U.S. troops is not a shared responsibility between the executive branch 
and the legislative branch under our system of government.
  To conclude, the Wisconsin State Journal said in an editorial 
published today the following remarks which I think are very 
appropriate. The editorial said:

       The United States may have avoided ``invading'' Haiti, but 
     the military occupation that began Monday walks and quacks 
     like a very similar duck. ``What is the mission of U.S. 
     troops--will they become ``rent-a-cops'', as one soldier 
     grumbled after the invasion was scratched? What happens if 
     Cedras and crew try to renege on the agreement, as feared by 
     the Haitian community in the United States? Almost certainly, 
     U.S. troops will become targets. How long will American 
     forces stay? It's worth remembering that U.S. Marines invaded 
     Haiti in 1915 to restore order after a Haitian mob killed an 
     unpopular president--and stayed for 19 years.

  Mr. President, we deserve to know the precise mission of the troops 
in Haiti. Our constituents rightly want to know that there is an exit 
strategy. And Congress should have the opportunity to authorize this 
large, military mission.
  So, Mr. President, to finally conclude, we deserve to know the 
precise mission of the troops in Haiti. Our constituents rightly want 
to know that there is an exit strategy. Congress should have the 
opportunity very soon to either authorize or disapprove of this large 
military mission.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. DANFORTH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri [Mr. Danforth].

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