[Congressional Record Volume 148, Number 98 (Thursday, July 18, 2002)]
[Senate]
[Pages S7044-S7048]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself and Mr. Harkin):
  S.J. Res. 41. A joint resolution calling for Congress to consider and 
vote on a resolution for the use of force by the United States Armed 
Forces against Iraq before such force is deployed; to the Committee on 
Foreign Relations.
  Mr. SPECTER. Mr. President, I sought recognition to introduce a joint 
resolution on behalf of Senator Harkin and myself calling upon the 
Congress to consider, vote on, and enact a joint resolution authorizing 
the use of force by the U.S. Armed Forces against Iraq before such 
force is used.
  This resolution takes no position as to whether the use of force 
should be authorized or it should not be authorized, but goes to the 
essential authority of the Congress under the Constitution to declare 
war.
  The President's powers as Commander in Chief are reserved for an 
emergency where Congress does not have an opportunity to deliberate and 
decide. It is obvious that concerning the current situation with Iraq, 
there is ample time for a resolution of the issue by the Congress.
  There have been repeated statements by the administration relating to 
military action against Saddam Hussein. It is known that Saddam has 
weapons of mass destruction, such as chemicals which he used against 
the Kurds, and there exists evidence of biological

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weapons that he possesses. The best thinking is Saddam does not now 
have nuclear bombs but is trying to acquire them.
  The President of the United States, in his State of the Union speech, 
identified Iraq, along with Iran and North Korea, as the ``axis of 
evil.'' Secretary of State Powell in congressional testimony then 
testified that the United States was not going to go to war against 
either Iran or North Korea, raising the inference that war against Iraq 
by negative implication was a distinct possibility.
  There have been repeated requests for regime change by the 
administration. In lieu of the limited time, I will not enumerate them, 
although they are set forth in some detail in my prepared statement.
  On February 13, 2002, I spoke on the floor calling for hearings by 
the Senate Foreign Relations Committee and/or the Senate Armed Services 
Committee, and by letters dated February 14, 2002, and March 12, 2002, 
wrote to the respective chairmen of those committees. I am glad to note 
that Senator Biden, chairman of the Foreign Relations Committee, has 
called for a September hearing on the Iraq issue.
  The power of the Congress on the declaration of war has been eroded 
very materially, with the President taking unilateral action in Korea, 
Vietnam, Grenada, Lebanon, Panama, Somalia, and Kosovo. But in a 
situation where there is ample time for the Congress to deliberate and 
decide, the Congress should assert its constitutional authority.
  Among the many issues regarding the separation of powers, none is 
more important than this basic power to declare war and the separate 
power which the President has as Commander in Chief which sometimes 
conflict, but not in the situation such as the one at hand where we 
have time to deliberate and decide.
  Earlier this month, I conducted some 19 town meetings across my State 
of Pennsylvania and found a great deal of citizen concern. People are 
unaware of the details and would like to know more.
  In my February 13, 2002 floor speech, I enumerated a number of issues 
which are worth repeating. First, hearings would identify with greater 
precision what Saddam has by way of weapons of mass destruction.
  Secondly, we would get into the details as to what Saddam and Iraq 
have done by way of thwarting the United Nations from conducting 
inspections. Earlier this year, I met with Secretary General Kofi Annan 
to get a firsthand briefing and to press the U.N. to do everything it 
could to get those inspections.
  Another issue which I think needs to be subjected to analysis and 
hearings and national debate is what the cost would be of toppling 
Saddam, including the cost in casualties.
  Fourth, what will happen after a regime change? What will happen if, 
as and when Saddam goes?
  There is also the critical issue as to what we may expect from Saddam 
by way of reprisal or by way of anticipatory action. We know that 
Saddam Hussein is ruthless. We have seen him use chemicals against his 
own people, the Kurds. We have his statement just yesterday on the 24th 
anniversary of the July revolution when Saddam came into power. It is a 
belligerent, bellicose statement.
  I had an opportunity to meet with Saddam Hussein in January of 1990 
at a meeting with Senator Richard Shelby. There is no doubt in my mind, 
from that contact--a meeting of about an hour and a quarter--that we 
are dealing with someone who has a mindset and a determination, having 
invaded Kuwait, having acted against the Kurds, that should give us 
every reason to be concerned about what he may do in light of the 
administration's repeated statements about a regime change; a concern 
if there is action by the United States against Iraq that there may be 
retaliation against Israel or others in the Mideast.
  Consideration by the Congress also would be very helpful in 
addressing the concerns which the international community has expressed 
on the unilateralism of President Bush and President Bush's 
administration. We have had instances of that: the International 
Criminal Court, Kyoto, the U.N.-Bosnia peacekeeping force, and others 
which I have enumerated in greater detail in the written statement 
which I will include at the conclusion of these remarks.
  If there are Members of the Senate and House who come forward and 
support the President--people in this body with extensive experience in 
the field over many years, respected international reputations--I think 
that would give credence to a position that the President may wish to 
take and would allay some of the concerns internationally on 
unilateralism, and perhaps persuade some of our allies that this is the 
right course of conduct.
  In considering what to do about Saddam, we have the example fresh in 
our mind of al-Qaeda and Osama bin Laden. We have learned that 20/20 
hindsight always being very good that we should have acted against bin 
Laden before September 11. We had ample warning and ample cause to do 
so. Bin Laden was under indictment for killing Americans in Mogadishu 
in 1993. Bin Laden was under indictment for the East Africa Embassy 
bombings in 1998. We knew he was involved in the U.S.S. Cole terrorism. 
He had made pronouncements about a worldwide jihad. The United States 
and the United Nations made demands on the Taliban to turn over bin 
Laden, which were refused. So we had a right under international law to 
proceed against bin Laden.

  There is obviously great concern about Saddam Hussein or what the 
future may hold if he goes unchecked. But these are all complicated 
issues. There ought to be full hearings. The American people ought to 
be informed. We have learned from the bitter experience of Vietnam what 
happens when there is military action where the American people are not 
supportive and the Congress is not supportive.
  Obviously, in a representative democracy, the matter first comes to 
the Congress. There is the precedent of President George H.W. Bush in 
1991, when the Congress authorized a resolution for the use of force. I 
know the Presiding Officer remembers it well, as do I. It was a 
historic debate, and has been so characterized by the media and other 
commentators. President Bush, in 1990, had originally said he did not 
need congressional authorization. Then Senator Harkin took the floor on 
January 3, 1991, during a swearing-in ceremony, and procedurally the 
course that then followed, without going into great detail now, was 
that we had the debate on January 10, 11, and 12 and voted 52 to 47 in 
this body authorizing the use of force to repel Iraq from Kuwait. So 
that precedent is with us.
  There is no doubt that Congress is reluctant to step into the breach 
and to take a position. I urged in 1998 that the Congress authorize the 
use of force before President Clinton moved in with the missile attacks 
against Iraq in December of 1998. My written statement goes into detail 
as to what I have done on this issue going back to 1983, when I 
conducted a debate with Senator Charles Percy on the question of Korea 
and Vietnam being a war, and the questioning of Justice Souter in 1990 
on whether Korea was a war. There has been a reluctance on the part of 
Congress to step forward. If we do nothing and it all works out, 
everything is fine, the Congress is happy. If the President acts 
unilaterally and is wrong, he gets the blame and we do not get the 
blame.
  I believe we have a responsibility to step forward. We have a 
responsibility institutionally under the Constitution to declare war, 
and we have a responsibility to acquaint the American people as to what 
is involved, and I think a responsibility to have this debate, to tell 
our European allies what our reasons are for what we may do.
  If there is to be military action against Saddam and Iraq, there is 
no doubt it would be much stronger with a congressional resolution, 
which implicitly carries the support of the American people. I think 
the hearings which I have called for and the debate on the resolution 
will do a great deal to inform the American people and the people of 
the world as to what we are up to, and whatever justification it is we 
have.
  I understand that my distinguished colleague, Senator Harkin, will be 
a cosponsor of this resolution.
  Repeated statements from the administration carry the strong 
suggestion that President Bush intends to take military action to 
change the regime of Saddam Hussein in Iraq. There

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are good reasons to be concerned about Saddam Hussein's developing 
weapons of mass destruction. Iraq's exclusion of UN inspectors raises 
the inference he has something to hide.
  On February 13, 2002, in a Senate floor statement, I urged that the 
Senate Armed Services and/or Senate Foreign Relations Committee hold 
hearings as much as possible in public with some necessarily in closed 
sessions, to determine:
  (1) The specifics on Iraq's weapons of mass destruction;
  (2) Precisely what happened on the United Nations efforts to conduct 
inspections in Iraq and Iraq's refusals;
  (3) What type of a military action would be necessary to topple 
Saddam, including estimates of U.S. casualties;
  (4) What is anticipated in a change in regime in Iraq including 
Saddam's prospective replacement.
  Congressional Record, S730-731, February 13, 2002.
  On April 4, 2002, I met with United Nations Secretary General Kofi 
Annan urging the UN to press Iraq to submit to wide-open, including 
surprise inspections, to determine the facts on Iraq's possession and 
efforts to create weapons of mass destruction. Meetings between UN 
officials and Iraqi representatives on May 1 and 3, 2002 produced no 
results. Subsequent meetings between UN officials and Iraqi 
representatives in early July produced no results.
  A ranking U.S. intelligence official advised that wide-open and 
surprise inspections in Iraq could provide reasonable assurances as to 
what Iraq has by way of possessing and/or developing weapons of mass 
destruction.
  Presidents have acted unilaterally in the past half century in 
initiating military actions in Korea, Vietnam, Grenada, Lebanon, 
Panama, Somalia and Kosovo. In some of those situations where there was 
not time for the Congress to deliberate and decide on a declaration of 
war or an authorization for the use of force, it was appropriate for 
the President to utilize his authority as Commander-in-Chief in an 
emergency. There is now ample time for the Congress to hold hearings, 
deliberate and take whatever action Congress deems appropriate 
regarding Iraq.
  There is a need for the American public to understand the issues 
involved in the use of military force against Iraq. There has been some 
public discussion, but relatively little. Congressional hearings would 
stimulate a national dialogue on the nation's op-ed pages, radio and 
television talk shows and in town halls across the country. I am glad 
to see that Senator Joseph R. Biden, Chairman of the Foreign Relations 
Committee, has announced his committee will hold hearings on Iraq in 
September.
  In 19 town meetings, which I conducted across the Commonwealth of 
Pennsylvania this month, I heard considerable public concern and 
confusion over the President's intentions as to Iraq. Public support, 
reflected through the elected members of the House and Senate, is 
indispensable to successfully carry out an extensive military action. 
The United States learned a better lesson in Vietnam that a war cannot 
be successfully fought without public and congressional support.
  Consideration by the Congress on these key issues would provide a 
basis for international understanding of our position and perhaps even 
support in some quarters. There is a world view that President Bush too 
often acts unilaterally on critical international issues such as the 
International Criminal Court, the UN/Bosnia peacekeeping force, the 
Kyoto Protocol, ABM Treaty withdrawal, and the Biological Weapons 
Convention. If congressional consideration was followed by the 
authorization for the use of force supported by thoughtful and 
experienced members of the House and Senate, the international 
community might well be reassured that the U.S. military action was not 
the decision of just one man, even though he is the President of the 
United States.
  There is solid precedent for President George W. Bush to request 
congressional authority for the use of force against Iraq, just as 
President George H.W. Bush did in January, 1991. On December 21, 1990, 
and as late as January 9, 1991, President Bush was quoted as saying a 
congressional authorization was not necessary. See Weekly Compilation 
of Presidential Documents, January 14, 1991. Vol. 27, No. 2, pp. 24-25. 
Many Senators, including Claiborne Pell of Rhode Island, Richard Lugar 
of Indiana, Tom Harkin of Iowa, Edward M. Kennedy of Massachusetts, 
Joseph R. Biden, Jr. of Delaware, Brock Adams of Washington and I 
sought to force debate on a resolution that would require congressional 
authorization for the use of force against Iraq. Congressional Record, 
S 48, January 4, 1991; Congressional Record, S119-120, January 10, 
1991; see also New York Times, October 18, 1990, page A1, ``Senators 
Demand Role in Approving Any Move on Iraq;'' Washington Post, January 
4, 1991, page A19, ``Canceling Recess, Lawmakers Prepare to Debate War 
Powers.''
  On January 3, 1991, the date that Senators who were elected and re-
elected the previous November took the oath of office, Senator Harkin 
successfully sought Senate debate and a vote on a use-of-force 
resolution. Senate Majority Leader George Mitchell scheduled Senate 
floor action for consideration of a resolution for the use of force on 
January 10, 1991. Following a Senate debate which was characterized as 
``historical'' by the Washington Post, the Senate authorized the use of 
force against Iraq by a vote of 52 to 47. Congressional Record, S1018-
1019, January 12, 1991. Similarly, the House of Representatives passed 
such a resolution by a vote of 250 to 183. Congressional Record, H1139-
1140, January 12, 1991.
  With the repeated public commentary on the President's plans to use 
force against Iraq, there has been public concern about what Saddam 
Hussein might do in anticipation or retaliation. Saddam is well known 
for his ruthlessness and his disdain for life by use of chemicals 
against his own people, the Kurds. Saddam is widely reported to have 
stockpiles of biological weapons. In a struggle for his own survival, 
why should we expect Saddam Hussein to refrain from using every weapon 
at his disposal against an announced attacker? A lengthy article in the 
New York Times on July 6, 2002 concerning U.S. plans for widespread 
inoculation for smallpox carried the implicit suggestion of a concern 
for a bioterrorism attack.
  Consideration by Congress on a resolution for the use of force 
against Saddam would not impact on any potential element of surprise 
because there is no element of surprise left. The news media has been 
full of notice to Saddam of potential U.S. plans such as: The New York 
Times February 16, 2002, edition which quoted Vice President Cheney as 
saying, ``The President is determined to press on and stop Iraq . . .  
from continuing to develop weapons of mass destruction'' and intends to 
use ``the means at our disposal--including military, diplomatic and 
intelligence to address these concerns'';
  The Los Angeles Times on May 5, 2002, reported that the defense 
Intelligence Agency has produced an operational support study on Iraq 
including maps and data on geography, roads, refineries, communication 
facilities, security organizations and military deployments;
  The Washington Post reported on May 24, 2002, General Tommy R. 
Franks, Commander of the U.S. Central Command, has briefed the 
President concerning troop levels necessary to invade Iraq and oust 
Saddam Hussein;
  The New York Times on July 5, 2002, reported on an American military 
document calling for air, land and sea based forces to attack Iraq and 
topple Saddam Hussein;
  The New York Times on July 9, 2002, quoted President Bush as saying 
on Iraq: ``It's the stated policy of this government to have regime 
change and it hasn't changed. And we'll use all tools at our disposal 
to do so.''
  In considering a pre-emptive strike against Iraq, we should 
consider--not that it is determinative--the consequences of not acting 
against al-Qaeda and Osama bin Laden before September 11, 2001. We had 
reason in that situation to anticipate a terrorist attack and we had 
rights under international law to move against bin Laden and al-Qaeda 
in a pre-emptive strike before September 11, 2001.
  Prior to September 11, Osama bin Laden was under U.S. indictment for 
killing Americans in Mogadishu in 1993. He was further under U.S. 
indictment for the attacks against American embassies in 1998. He was 
known to have been involved in the terrorist attack of the USS Cole. 
Osama bin Laden

[[Page S7047]]

had spoken repeatedly and publicly about his intention to carry out a 
worldwide Jihad against the United States.
  When the Taliban in control in Afghanistan refused to turn over bin 
Laden to the United States after demands by the United States and the 
United Nations, the United States had rights under international law to 
use military force against al-Qaeda and bin Laden.
  With congressional hearings as a start, the American people should be 
informed about Iraq's threat and all our efforts to deal with this 
threat short of use of military force. We should do our utmost to 
organize an international coalition against Iraq, which President 
George Bush did in 1991, specifying as much of the evidence as possible 
in public congressional hearings in order to create American and 
worldwide public support for appropriate action. Such public hearings 
would be supplemented by classified information given to the leaders of 
the prospective coalition.

  Article I, Section 8 of the United States Constitution provides that 
``Congress has the authority to declare war.'' Article 2 Section 2 of 
the United States Constitution provides that the President ``shall be 
commander in chief of the army and navy of the United States. . . .''
  In the past half century, there has been a consistent and 
considerable erosion of Congress' constitutional authority to declare 
war with a concomitant expansion of the President's powers as 
Commander-in-Chief. My concerns about the erosion of congressional 
authority to declare war first arose in 1951 when I was called to 
active duty in the United States Air Force after having received in 
R.O.T.C. commission as a second lieutenant upon graduation from the 
University of Pennsylvania. I was glad to serve state-side from July 
29, 1951 to July 31, 1953 as a special agent in the Office of Special 
Investigations, noting that President Truman had acted on his authority 
as Commander-in-Chief to order a ``police action'' without 
congressional authorization.
  Early in my Senate career, I participated extensively in floor debate 
on the War Powers Resolution concerning U.S. military action in 
Lebanon. On September 27, 1983, I questioned Senator Charles H. Percy, 
Chairman of the Foreign Relations Committee, as to whether Korea and 
Vietnam were wars. Senator Percy stated that both Korea and Vietnam 
were wars even though undeclared. Congressional Record, S. 12995, 
September 27, 1983.
  In 1983, I prepared a legal document for a declaratory judgment 
action to take to the Supreme Court of the United States on the issue 
of the constitutionality of the War Powers Act and seeking a judicial 
determination of the respective authority of the President as 
Commander-in-Chief and the Congress to declare war. It was my thought 
that if the Congress and the President asked the Court to take 
jurisdiction and decide this issue, the Court might do so although even 
with such a joint request, the Supreme Court might be unwilling to be 
involved in the so-called ``political thicket''. The Reagan 
Administration was unwilling to join in such a request and 
congressional leaders were reluctant to do so although no final 
determination was made since the issue was rendered moot by the Reagan 
Administration's declination. Understandably, the parties preferred to 
leave the issue ambiguous with a resolution on a case-by-case basis in 
the political process without a finite judicial determination.
  I pursued my inquiries by questioning Supreme Court nominees as to 
whether Korea was a war. In confirmation hearings for Justice David 
Souter on September 14, 1990, I questioned him as to whether Korea was 
a war, whether the Presidents exceeded their constitutional authority 
in military action in Korea and Vietnam and whether the War Powers Act 
was unconstitutional in violating presidential powers as Commander-in-
Chief. Justice Souter declined to express an opinion stating, in 
effect, that there was no law to guide him in answering these 
questions. See Hearings Before the Committee on the Judiciary, United 
States Senate, 101st Cong., 2nd Sess., on the Nomination of David H. 
Souter to be Associate of the Supreme Court of the United States.
  In the Fall of 1990 and in early January 1991, I joined other 
senators in successfully taking the position that the President needed 
congressional authorization for the use of military force against Iraq 
and the enforcement of UN Security Council Resolution 678. 
Congressional Record, S. 405-490, January 10, 1991.
  I took up this question again on September 13, 1994, taking the 
position that the President did not have the constitutional authority 
to order an invasion of Haiti without prior congressional 
authorization. Congressional Record, S. 12760, September 13, 1994.
  On June 5, 1995, I introduced S. Res. 128, which stated it was the 
sense of the Senate that no U.S. military personnel should be 
introduced into combat or potential combat situations in Bosnia without 
clearly defined objectives and sufficient resources to achieve those 
objectives. Congressional Record, S. 7703, June 5, 1995. That 
resolution noted that there was ample time for Congress to deliberate 
and decide that matter, stating that such a decision was a matter for 
the Congress and that there should be no further erosion of that 
authority by the Executive Branch.
  On November 1, 1995, noting the military action in Somalia without 
congressional authority and the military action in Haiti without 
congressional authority, I urge the President to follow the precedent 
of the Gulf war and seek congressional approval for incursions into 
Bosnia since there was ample opportunity for Congress to consider and 
decide the issue. Congressional Record, S. 31102, November 1, 1995.
  On September 17, 1996, I spoke on the Senate floor on the use of 
force with missile strikes against Iraq on September 3, 1996, noting 
that this was another example where the President did not seek 
congressional authorization or even consultation in advance of that 
military action. Congressional Record, S. 10624-10625, September 17, 
1996.
  When there was speculation about additional military action against 
Iraq in early 1998, I spoke on the Senate floor on February 12, 1998, 
noting that an air attack or a missile attack constituted acts of war 
which required congressional authority. Congressional Record, S. 791-
792, February 12, 1998. The President then ordered missile strikes 
against Iraq in December 1998 without seeking congressional authority.
  On February 23, 1999, during Senate debate on the President's use of 
force in Kosovo, I noted my concern that air strikes constituted acts 
of war which required authorization by Congress. Congressional Record, 
S. 1771-1773, February 23, 1999. I again noted the continuing erosion 
of constitutional authority and the need for Congress to debate, 
deliberate and decide these issues when there was ample time to do so. 
I noted the tendency on the part of Congress to sit back and avoid such 
tough decisions. If things go wrong, there is always the President to 
blame. If things go right, we have not impeded Presidential action.
  On March 23, 1999, the Senate voted 58 to 41 to authorize air strikes 
in Kosovo after the President's request for such congressional action. 
Congressional Record, S. 3118, March 23, 1999. I voted in favor of air 
strikes even though I had concerns about the President's reliance on 
the ``humanitarian catastrophe'' which was a departure from recognized 
U.S. policy to use force where there was a vital U.S. national security 
interest. The House deadlocked 213 to 213 on the same vote to authorize 
force. Congressional Record, H. 2451-2452, April 28, 1999.
  On May 24, 1999, I proposed an amendment to S. 1059--the Department 
of Defense Authorization bill--calling on the President to ``seek 
approval from Congress prior to the introduction of ground troops from 
the United States Armed Forces in connection with the present 
operations against the Federal Republic of Yugoslavia or funding for 
that operation will not be authorized.'' Congressional Record, S. 5809-
5811, May 25, 1999.
  While supporting air strikes proposed by the President against the 
former Yugloslavia, I opposed any open-ended authorization, such as 
S.J. Res. 20, which would have ``authorized [the President] to use all 
necessary force and other means in concert with

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United States allies to accomplish the United States and North Atlantic 
Treaty Organization objectives in the Federal Republic of Yugoslavia, 
Serbia and Montenegro''. I thought the broad wording of that resolution 
constituted a blank check which was unwise. Instead, the President 
should seek specific congressional authority after specifying the 
objectives and the means for accomplishing those objectives.
  There is an understandable reluctance on the part of Members of the 
House and Senate to challenge a President, especially a popular 
President, on his actions as Commander-in-Chief to protect U.S. 
national interests. The constitutional issues on separation of powers 
and the respective authority of the Congress vis-a-vis the President 
are obviously important. Of even greater importance, however, is the 
value of a united front with the President backed by congressional 
authorization and American public opinion on an issue where most, if 
not virtually all, of the international community is in opposition.
  If the Congress sits back and does nothing and the President is 
right, then there is public approval. If the President turns out to be 
wrong, then it is his responsibility without blame being attached to 
the Congress. There is an added element that the President may, and 
probably does, know more than the Congress. Hearings, in closed 
session, could address that discrepancy in knowledge.
  The current issue of Iraq is another chapter, albeit a very important 
chapter, in the ongoing effort to define congressional and Presidential 
authority on the critical constitutional doctrine of separation of 
powers. In the present case, there is ample time for Congress to 
deliberate and decide. With the stakes so high, Congress should assert 
its constitutional authority to make this critical decision.

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