[Congressional Record Volume 148, Number 72 (Wednesday, June 5, 2002)]
[Extensions of Remarks]
[Pages E960-E961]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


      FISCAL YEAR 2003 NATIONAL DEFENSE AUTHORIZATION ACT, PART IV

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                         HON. PETER A. DeFAZIO

                               of oregon

                    in the house of representatives

                         Tuesday, June 4, 2002

  Mr. DeFAZIO Mr. Speaker, today I rise to conclude my remarks about 
H.R. 4546, the fiscal year 2003 Department of Defense authorization 
act. As I outlined previously, H.R. 4546 continues to fund, to the tune 
of hundreds of billions of dollars, weapons that have little or no 
relevance to the threats our nation faces in the 21 st century.
  My previous remarks detailed the amendments I offered to eliminate or 
reform the Crusader artillery system, the Comanche helicopter and the 
F-22 Raptor fighter jet program.
  I want to switch gears a little bit and move away from my concerns 
about unnecessary weapons systems. I'd like to conclude my remarks on 
the defense authorization bill by focusing on the most solemn 
obligation of Congress, our constitutional powers to decide issues of 
war and peace,
  The final amendment I offered to H.R. 4546 was a ``Sense of 
Congress'' amendment relating to congressional war powers under the 
U.S. Constitution. This was a bipartisan amendment I offered with 
Representative Ron Paul of Texas.
  Our amendment was in response to the public musings of members of the 
Bush Administration about where the United States should project our 
military force next in the campaign against terrorism. Iraq is the most 
talked about target, but several other countries have been mentioned as 
well.
  I am concerned that the Administration believes it can wage war 
anywhere, at any time, for any reason, at any cost. The executive 
branch seems to forget that the sole authority to declare war is 
reserved under the U.S. Constitution for Congress.
  The amendment I drafted noted that the U.S. Constitution grants 
Congress the power ``to declare war,'' to lay and collect taxes to 
``provide for the common defense'' and general welfare of the United 
States, to ``raise and support armies,'' to ``provide and maintain a 
navy,'' to ``make rules for the regulation for the land and naval 
forces,'' to ``provide for calling forth the militia to execute the 
laws of the Union, suppress insurrections and repel invasions,'' to 
``provide for organizing, arming, and disciplining, the militia,'' and 
to ``make all laws necessary and proper for carrying into execution . . 
. all . . . powers vested by this Constitution in the Government of the 
United States.'' Congress is also given exclusive power over the purse. 
The Constitution says, ``No money shall be drawn from the Treasury but 
in consequence of appropriations made by law,''
  By contrast, the war powers granted to the executive branch through 
the President are limited to naming the President ``commander-in-
chief'' of the armed forces. While this means the President conducts 
the day-to-day operations of a given military campaign, the President 
does not have the authority to send U.S. troops into hostile situations 
without prior approval from Congress.
  This right was recognized by the earliest leaders of our nation. In 
1793, President George Washington, when considering how to protect 
inhabitants of the American frontier, instructed his Administration 
that ``no offensive expedition of importance can be undertaken until 
after [Congress] have deliberated upon the subject, and authorized such 
a measure.''
  In 1801, President Thomas Jefferson sent a small squadron of frigates 
to the Mediterranean to protect against possible attacks by the Barbary 
powers. He told Congress that he was ``unauthorized by the 
Constitution, without the sanction of Congress, to go beyond the line 
of defense.'' He further noted that it was up to Congress to authorize 
``measures of offense also.''
  John Jay, generally supportive of executive power, warned in 
Federalist paper number four that ``absolute monarchs will often make 
war when their nations are to get nothing by it, but for purposes and 
objects merely personal, such as a thirst for military glory, revenge 
of personal affronts, ambition, or private compacts to aggrandize or 
support their particular families or partisans. These and a variety of 
other motives, which affect only the mind of the sovereign, often lead 
him to engage in wars not sanctified by justice or the voice and 
interests of his people.''
  Henry Clay said, ``A declaration of war is the highest and most awful 
exercise of sovereignty. The convention which framed our Federal 
constitution had learned from the pages of history that it had been 
often and greatly abused. It had seen that war had often been commenced 
upon the most trifling pretexts; that it had been frequently waged to 
establish or exclude a dynasty; to snatch a crown from the head of one 
potentate and place it upon the head of another; that it had often been 
prosecuted to promote alien and other interests than those of the 
nation whose chief had proclaimed it, as in the case of English wars 
for Hanoverian interests; and, in short, that such a vast and 
tremendous power ought not to be confined to the perilous exercise of 
one single man . . . Congress, then in our system of government, is the 
sole depository of that tremendous power.''
  During congressional consideration of a war with Mexico, Daniel 
Webster said, ``It must be admitted to be the clear intent of the 
constitution that no foreign war would exist without the assent of 
Congress. This was meant as a restraint on the Executive power.'' He 
went on to say, ``If we do not maintain this doctrine; if it is not 
so--if Congress, in whom the war-making power is expressly made to 
reside, is to have no voice in the declaration or continuance or war; 
if it is not to judge of the propriety of beginning or carrying it on--
then we depart at once, and broadly, from the Constitution.''
  Abraham Lincoln outlined the rationale for placing the war-making 
power in the Congress. He wrote to a friend, ``Kings had always been 
involving and impoverishing their people in wars, pretending generally, 
if not always, that the good of the people was the object. This our 
convention [U.S. Constitutional Convention] understood to be the most 
oppressive of all kingly oppressions, and they resolved to so frame the 
constitution that no man should hold the power of bringing this 
oppression upon us.''
  Senator Robert LaFollette made a similar point during the floor 
debate on whether to enter World War I. He said, ``We all know from the 
debates which took place in the constitutional convention why it was 
that the constitution was so framed as to vest in the Congress the 
entire war-making power. The framers of the Constitution knew that to 
give to one man that power meant danger to the rights and liberties of 
the people. They knew that it mattered not whether you call the man 
king or emperor, czar or president, to put into his hands the power of 
making war or peace meant despotism. It meant that the people would be 
called upon to wage wars in which they had no interest or to which they 
might

[[Page E961]]

even be opposed. It meant secret diplomacy and secret treaties. It 
meant that in those things, most vital to the lives and welfare of the 
people, they would have nothing to say.''
  While early presidents deferred to Congress, later presidents have 
latched on to the fact that the Constitution declares the president 
commander-in-chief of the armed forces to justify their use of the 
military without prior authorization from Congress. This led Congress 
to enact the War Powers Resolution of 1973 to further clarify that the 
solemn duty to decide when to send U.S. troops into hostilities 
belonged to Congress.
  According to Section 2(c) of the War Powers Resolution the President 
can introduce U.S. forces into hostile situations ``only pursuant to 
(1) a declaration of war, (2) specific statutory authorization, or (3) 
a national emergency created by attack upon the United States, its 
territories or possessions, or its Armed Forces.''
  In the aftermath of the terrorist attacks on September 11, 2001, 
Congress approved a resolution authorizing President Bush to take 
action against the parties responsible for the heinous attacks. 
However, the authorization was limited in scope.
  Specifically, the joint resolution stated:
  ``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.''
  In other words, Congress only authorized the President to take action 
against those responsible for the horrific attacks of September 11, 
2001. The President must have compelling evidence of the complicity of 
another nation in the September 11 attacks in order to use the U.S. 
military to take action against that nation. Absent such evidence, the 
President would be required under the Constitution to come back to 
Congress seeking an additional authorization of force resolution before 
expanding the military campaign.
  This interpretation was confirmed by Mr. Louis Fisher, Senior 
Specialist in Separation of Powers at the Congressional Research 
Service, who recently testified before the Senate Judiciary Committee 
that ``military operations against countries other than Afghanistan can 
be appropriately initiated only with additional authorization from 
Congress.''
  It is critical, as a representative democracy, that profound 
decisions on war and peace rest with the branch closest to the people--
the legislative branch.
  The amendment I offered with Representative Paul was intended to send 
the message that the President has a constitutional obligation to 
return to Congress to seek authorization before expanding the military 
campaign against terrorism. Unfortunately, the Rules Committee refused 
to allow a discussion on this, one of the most difficult and solemn 
issues that confronts our nation.
  Mr. Speaker, I am disappointed that my Republican colleagues were 
unwilling to go on record in support of the DeFazio-Paul amendment, 
which was intended to defend congressional war powers from encroachment 
by the executive branch.

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