[Congressional Record Volume 148, Number 75 (Monday, June 10, 2002)]
[Senate]
[Pages S5280-S5282]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             WAR POWERS AND THE CAMPAIGN AGAINST TERRORISM

  Mr. FEINGOLD. Madam President, today I would like to address one of 
the most complicated but ultimately one of the most important 
constitutional questions confronting this country as we respond to the 
atrocities of September 11: that is, the question of how America 
decides to go to war. This is no easy issue, but it is one that 
Congress is duty-bound to address.
  As we know, war powers are purposefully divided under our 
Constitution. Under Article I, Section 8, Congress has the 
responsibility to declare war, and to raise and support the Armed 
Forces. The President, under Article II, Section 2, is the Commander in 
Chief, which gives him responsibility for leading the Armed Forces. The 
War Powers Resolution of 1973 fulfills the intent of the Framers of the 
Constitution by providing a framework for balancing these powers, and 
thereby ensuring that the collective judgment of both the Congress and 
the President will apply to the introduction of the Armed Forces into 
hostilities, or into situations where imminent involvement in 
hostilities is likely.
  In April, I had a chance to chair a hearing in the Constitution 
Subcommittee of the Judiciary Committee to consider this balance of war 
powers authority under the Constitution, particularly as we move 
forward with our fight against terrorism. In the hearing, there was 
much praise for the respect demonstrated by President Bush, this 
President Bush, for both the Congress and the Constitution in seeking 
congressional authorization to respond with appropriate force to the 
attacks of September 11. The language in that authorization, Senate 
Joint Resolution 23, paralleled some of the careful oversight 
provisions contained in the use-of-force resolution that former 
President Bush obtained before launching Operation Desert Storm in 
1991. In those two cases, both Presidents took the important and 
constitutionally mandated step of obtaining congressional approval for 
an expansive new military operation. And in both cases, I do believe, 
congressional support strengthened the President's response.
  History demonstrates that respect for our Constitution and for the 
shared war powers authority of Congress is politically practical. 
Indeed, as our Founders and many subsequent commentators have 
recognized, the separation of war powers between the two branches of 
government wisely forces us to develop a broad national consensus 
before placing our Nation's young people in harm's way. And as we have 
seen time and again, the United States is indeed the most formidable 
military force on this planet, provided our soldiers are entrusted with 
a clear military goal, and through congressional authorization, with 
the popular mandate that is needed to back them up.
  Senate Joint Resolution 23, which was passed by both Houses of 
Congress and signed into law by the President in the aftermath of 
September 11, provides the President with statutory authorization to 
prevent related acts of terrorism. In adopting the use-of-force 
resolution, the President recognized that Congress he said, ``acted 
wisely, decisively, and in the finest traditions of our country.'' The 
resolution demonstrated that Congress has the capacity to fulfill its 
constitutionally mandated responsibility, and in so doing Congress can 
help unify the nation in a time of national crisis.
  Under the careful structure of S.J. Res. 23, the President now has 
statutory authority to prevent future terrorist attacks by responding 
with force against any nations, organizations or persons responsible 
for planning, authorizing, aiding or harboring the terrorists who were 
responsible for the September 11 attack. Now, given the unprecedented 
nature of the threat, this provides a pretty broad mandate to the 
President to respond militarily.
  But this Congressional action, while admittedly broad, is not a blank 
check. The Resolution limits the President's authority in two essential 
respects.
  To begin, the authorization is limited to situations where there is a 
connection to the events of September 11. The hearing in the 
Constitution Subcommittee considered the scope of such a limitation. As 
I will discuss at greater length, there was widespread agreement in the 
hearing that absent a clear finding that a state such as Iraq 
participated in, aided, or otherwise provided support for those who 
attacked the United States on Sept 11, the President would not be 
authorized, under the terms of S.J. Res. 23, to take new military 
action against Iraq. Senate Joint Resolution 23 does not provide 
unlimited authority to the President to take military action against 
all bad actors. At the same time, the authorization does foresee broad 
actions against those responsible for the September attack on the 
United States.
  It is also important to recognize that S.J. Res. 23 states in no 
uncertain terms that the 1973 War Powers Resolution will continue to 
apply to our military operations against terrorism. This conforming 
language is identical to Public Law 102-1, which provided the 
authorization to use military force to oust Iraq from Kuwait in 1991. 
In all cases, the War Powers Resolution requires the President to 
consult with Congress on an ongoing basis on the status, scope, and 
duration of the hostilities. These consultations need not and should 
not provide Congress with what would be somehow a meddlesome and 
unacceptably dangerous role in determining tactical aspects of an 
active military campaign. But the required consultations must 
nonetheless assist Congress in its continuing responsibility to 
evaluate and make ongoing decisions about the broad objectives of an 
unfolding military operation.
  The war powers consultations to date, in my view, have been 
inadequate. While the administration has taken significant steps to 
increase the frequency of briefings for Members of Congress, and we do 
appreciate that those consultations have been conducted as 
informational briefings, with little opportunity for substantive policy 
discussions or meaningful give-and-take. As such they do not in most 
cases reach the threshold level of consultations under the terms of the 
War Powers Resolution.
  The House Report on the 1973 War Powers Resolution notes that ``a 
considerable amount of attention was given to the definition of 
consultation.

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Rejected was the notion that consultation should be synonymous with 
merely being informed. Rather, consultation in this provision means 
that a decision is pending on a problem and that Members of Congress 
are being asked by the President for their advice and opinions and, in 
appropriate circumstances, their approval of action contemplated.'' The 
increasingly frequent meetings with Secretary Rumsfeld, Secretary 
Powell, and others, while welcome and appreciated, do not reach this 
level of consultation.
  In addition, under the War Powers Resolution, the need for additional 
notification is triggered whenever U.S. Armed Forces are equipped for 
combat and introduced into a new foreign territory, or if additional 
Armed Forces are equipped for combat and introduced in numbers that 
substantially expand existing, previously authorized troop strengths. 
This is obviously relevant to some of the concerns coming up today.
  These and other requirements do not apply to military training 
exercises, which is why the President must be clear about the precise 
role of U.S. forces in a number of ongoing counterterrorism training 
exercises in different countries. These requirements do not apply to 
that. In some cases, these counterterrorism training programs may cross 
the line into counterterrorism combat support, which would trigger the 
War Powers Resolution. So the President must provide clear information 
to help distinguish between these two types of antiterrorism 
activities. United States interests are not served through a 
shortsighted attempt to dodge congressional oversight by characterizing 
counterterrorism support as routine military training.
  In the hearing before the Constitution Subcommittee, we also 
discussed the important provision within the War Powers Resolution that 
recognizes the immediate flexibility provided to the President to 
introduce U.S. Armed Forces into hostilities in the case of a national 
crisis created by an attack on the United States, or its territories, 
possessions, or Armed Forces. This provides the President with the 
flexibility to respond immediately to defend United States interests 
during an emergency.
  But again, this is a limited exception. The War Powers Resolution 
specifically requires the President, ``in every possible instance,'' to 
consult with Congress before introducing Armed Forces into situations 
where hostilities appear imminent. And even within this exception for 
emergency situations, the President must still seek congressional 
authorization within 60 days to sustain the operation.
  My conclusion from the hearing on war powers authority within the 
context of our fight against terrorism is that to date the President 
has shown respect for Congress in seeking authorization to respond to 
the attacks of September 11. But the ongoing level of consultation on 
our military campaign has not been adequate. In particular, additional 
attention must be given to the distinction between counter- 
terrorism training and counter- 
terrorism support for foreign troops during these consultations. It is 
clear that our national interests would be well served by sustained and 
forthright consultations between Congress and the President over these 
aspects of our military response to September 11.
  The hearing also touched on one of the most important military 
decisions on the horizon. Several witnesses questioned the authority of 
the President to take military action against Iraq. The witnesses 
generally assumed that any strike against Iraq would be designed to 
defend the United States against Iraqi weapons of mass destruction, and 
that the President would not assert a direct link between Iraq and the 
September 11 attacks. As I have indicated, absent such a link between 
Iraq and September 11, witnesses suggested that the President might 
advance two legal justifications for taking up arms against Iraq 
without further, additional congressional authorization. But both 
justifications ring hollow, and rest on highly questionable legal 
grounds.
  During the hearing, a witness from the Justice Department joined 
other witnesses in highlighting the authority of the President to 
launch military attacks as a form of preemptive self-defense. This 
expands the national emergency exception under the War Powers 
Resolution by asserting that the President must have the authority to 
act quickly and decisively to prevent a potential attack on United 
States interests. Now, few would disagree with the assertion that the 
President must have the authority to launch a preemptive strike in 
advance of an imminent attack on the United States. This understanding 
I think fits within the overall spirit and intent of the 1973 War 
Powers law, and it would be irresponsible to suggest otherwise. But the 
preemptive self-defense argument does not necessarily fit squarely with 
the situation in Iraq today.
  Various press reports suggest that President Bush is considering 
plans for a new military campaign against Iraq sometime next year. If 
the President does plan to take such action next year, there is still 
plenty of time for the administration to initiate meaningful 
consultations with Congress over the necessity and scope of this new 
military campaign.
  Some have also argued, unconvincingly to me, that consultation with 
Congress would be impossible because a preemptive strike against Iraq 
would require a high degree of stealth. But the administration has 
already spoken publicly of the need for regime change in Iraq, and 
unnamed officials have consistently leaked information to major news 
sources describing the scope of the proposed operation.
  Moreover, it is now widely assumed that the operation would require a 
robust ground assault, and that our military build-up in the region 
would be both deliberate and plainly obvious to any careful observer. 
So this would not be a purely stealth operation. There would be ample 
time for congressional consultation as we move forward with fairly 
obvious military preparations for such a large offensive.
  The second argument that is sometimes advanced to support a future 
military operation in Iraq is that Public Law 102-1, authorizing the 
use of force in 1991 to respond to Iraq's invasion of Kuwait, still 
provides ongoing congressional authorization for a major new strike 
against Iraq. Now, this is a more complex legal argument, but it fails 
on both legal and public policy grounds. To begin, the congressional 
authorization for Operation Desert Storm authorizes the President to 
use military force pursuant to United Nations Security Council 
Resolution 678. The clear intent of the Security Council in adopting 
Resolution 678 was to free Kuwait from Iraqi occupation, not to bring 
about regime change in Iraq. Moreover, United Nations Security Council 
Resolution 687 implemented a final cease-fire between Iraq, Kuwait and 
the United Nations Member States that participated in Operation Desert 
Storm. Although Iraq has certainly failed to comply with the terms of 
the cease-fire, that failure does not in itself provide automatic 
authority for the President to launch a significant new military 
campaign, with the entirely new objective of regime change in Baghdad.
  My conclusion, then, is that absent a clear finding that Iraq 
participated in, aided or otherwise provided support for those who 
attacked the United States on Sept 11, the Constitution requires the 
President--it requires the President--to seek additional authorization 
before he can embark on a major new military undertaking in Iraq.
  Since it is clear that Iraq has not adequately complied with weapons 
of mass destruction resolutions adopted by the Security Council, and 
that the Iraqi leadership continues to commit gross human rights 
violations against its own people while encouraging terrorist attacks 
abroad, the consultation and debate over our response to an Iraqi 
threat may well convince a majority in Congress that the United States 
must in fact take all necessary steps, including military action, to 
limit Iraq's capacity to produce weapons of mass destruction. My guess 
is that such a resolution would succeed, after a good Congressional 
debate. If this emerges as the shared decision of Congress and the 
President, the President would act from a strong and constitutionally 
unified position in launching a new military campaign. Indeed, the 
Constitution and the American people must demand such a unified 
response.
  Why would I raise these issues today? Why are these war powers 
questions so

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important? Why should following the letter of the War Powers Resolution 
be so important in the midst of this national crisis? I think it should 
because Congress and the President have a chance to carry out their 
duties with regard to war and peace in the way the War Powers 
Resolution dictates, and also in the way the Framers of the 
Constitution intended.
  That kind of cooperation preserves our constitutional structure. It 
also increases the moral authority of the President to act forcefully. 
Given the unprecedented nature of the threats confronting us, and the 
complex environment within which we must respond to those threats, a 
powerful and constitutionally unified response remains essential. We 
must also remember that constitutional unity presents both a stronger 
international image of the United States to our friends and foes, and, 
at the same time, a more comforting image of U.S. power to many of our 
close allies in the campaign against terrorism. When we best honor our 
Constitution and our laws as they relate to the powers of war and 
peace, we also best prepare our Nation to defend that Constitution and 
those laws. We owe our Nation no less.
  I thank the Chair, and I yield the floor.

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