[Congressional Record Volume 148, Number 130 (Monday, October 7, 2002)]
[Senate]
[Pages S10004-S10006]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DELEGATION OF CONGRESSIONAL AUTHORITY
Mr. SPECTER. Mr. President, one other issue is of concern to me, and
that is the question of delegation of congressional authority to the
President. The constitutional mandate--and I spoke to this subject last
Thursday and will not repeat a good bit of what I said--but the
doctrine of separation of powers precludes the Congress from delegating
its core constitutional authority to the executive branch.
I had occasion to study that subject in some detail on the question
of the delegation of congressional authority on base-closing
commissions. There is a substantial body of authority on the
limitations of the delegation of congressional authority.
In an extensive treatise by Professor Francis Wormuth, professor of
political science at the University of Utah, and Professor Edwin
Firmage, professor of law at the University of Utah, the historical
doctrines were reviewed leading to a conclusion that the Congress may
not delegate the authority to engage in war.
If we authorize the President to use whatever force is necessary,
that contemplates future action. While no one is going to go to court
to challenge the President's authority, that is of some concern, at
least to this Senator.
I discount the argument of those who say that regime change of Saddam
Hussein is motivated by the failure to finish the job in 1991 or
Saddam's efforts to assassinate President Bush, the elder. While it is
true that Vice President Cheney and Secretary of State Powell were
principal participants as Secretary of Defense and as Chairman of the
Joint Chiefs of Staff on the decision not to march to Baghdad in 1991,
their experience benefits the United States in this current situation.
I further discount the argument that President George W. Bush seeks
to correct any mistakes of his father or that it is a personal matter,
as some have argued, from his comment: The guy tried to kill my dad. I
am not unaware of the psychologist's contentions that motives are
frequently mixed and hard to sort out, but I do think our Nation is
fortunate to have the leadership of President Bush, Vice President
Cheney, and Secretary Powell at this perilous time.
I have been briefed by administration officials on a number of
occasions, and I am looking forward to another briefing tomorrow by
National Security Adviser Condoleezza Rice and CIA Director George
Tenet.
There is substantial information about the weapons of mass
destruction which Saddam Hussein has available, but I am interested in
knowing with greater precision, to the extent that the administration
can release it, the situation with regard to Saddam's efforts to
develop nuclear weapons.
In evaluating the time when preemptive action may be used, Secretary
of State Daniel Webster, in dealing with the so-called Caroline
incident, in 1837, when British troops attacked and sank an American
ship, then-Secretary of State Webster made a point that an intrusion
into the territory of another State can be justified as an act of self-
defense only in those:
Cases in which the necessity of that self-defense is
instant, overwhelming and leaves no choice of means and no
moment of deliberation.
It is very relevant, on an evaluation of meeting that goal, as to
just where Iraq stands on the weapons of mass destruction. In previous
briefings, I have sought the administration plan as to what will be
done after Saddam Hussein is toppled, and I think that is an area where
a great deal more thought needs to be given. The situation in Iraq
would obviously be contentious, with disputes between the Sunnis and
the Shi'ites, with the interests of the Kurds in an independent state,
and it means a very long-term commitment by the United States.
We know the problems we have in Afghanistan. Iraq has to defray some
of the costs, but what happens after Saddam Hussein is toppled has yet
to be answered in real detail.
On the issue of a battle plan, perhaps that is too much for the
administration to tell the Congress, but as a Senator representing 12
million Pennsylvanians, in a country of 280 million Americans, I think
we ought to have some idea as to how we are going to proceed and what
the casualties may be.
All of this is to say there are many questions and many issues to be
considered. The predictions are numerous that the Congress of the
United States will pass a resolution authorizing the use of force by an
overwhelming majority. I am not prepared to disagree with that. And on
a proper showing of the imminence of problems with Saddam Hussein and
on a proper showing that this is the last recourse, my vote may well be
cast with the administration as well. But I am interested in hearing
debate on the floor of the Senate as to the relative merits of
requiring U.N. multilateral action as a condition for the use of force,
contrasted with U.S. unilateral action.
If we require U.N. multilateral action, we do subject ourselves to
the
[[Page S10005]]
veto of France, China, and Russia, which is undesirable. If we
authorize the use of force unilaterally by the President, then we may
well be setting a precedent which could come back to haunt us with
nations such as China going after Taiwan or a nation such as India or
Pakistan going after the other.
I look forward to the additional briefing tomorrow, and I look
forward to the debate which we will be having on the Senate floor on
these very important issues.
I note that the distinguished President pro tempore has come to the
floor. While this is not prearranged and I have not given him any
warning--although I do not think Senator Byrd needs any warning on
constitutional issues--I would be interested in the views of the
Senator from West Virginia, if he cares to give them, on this issue of
delegation of authority.
Earlier in my presentation, as I said last Thursday, I talked about
this issue and referred to the treatise by Professors Wormuth and
Firmage of the University of Utah where in a chapter devoted to the
delegation of the war power the professors say:
That Congress may not transfer to the executive . . .
functions for which Congress itself has been made
responsible. Of course, the power to declare war is a core
congressional responsibility.
Chief Justice Marshall said--and I am leaving out some of the
irrelevant parts--it will not be contended Congress can delegate powers
which are exclusively legislative. And Hamilton argued in the
Federalist to the effect that it is impossible for Congress to enact
governing standards for launching future wars and, thus, spoke about
the impermissibility of delegating the power to declare war.
The treatise notes the prohibition against the delegation of such
power:
To initiate a war in a future international environment in
which significant details, perhaps even major outlines,
change from month to month or even from day to day. The
posture of international affairs of the future cannot be
known to Congress at the time the resolution is passed.
According to Henry Clay, a great Senator, the Constitution requires
that Congress itself appraise the immediate circumstances before the
Nation voluntarily enters into a state of war.
Clay's argument went beyond that. He argued that:
Congress itself cannot make a declaration of a future war
dependent upon the occurrence of stipulated facts, because
war is an enterprise in which all the contemporary
circumstances must be weighed.
If we adopt the resolution, we will be saying that the President has
the authority to use force, and that will be a decision which the
President will make in futuro--some time in the future.
I am interested in the views of my distinguished colleague from West
Virginia as to whether that is an unconstitutional or constitutional
delegation of Congress' authority to declare war.
The PRESIDING OFFICER (Mrs. Lincoln). The Senator from West Virginia.
Mr. BYRD. The distinguished Senator from Pennsylvania does me great
honor in making his inquiry. I am not prepared to respond at the
moment. I would be interested in reading the treatise by the persons
named.
I might suggest that the Supreme Court, in its recent decision with
reference to the line-item veto, strongly indicated that Congress
cannot cede its powers under the Constitution.
I believe the court in that instance was alluding to certain powers
over the purse.
This is a good question the distinguished Senator has posed. Based on
his wide and rich experience as a prosecuting attorney, I think such
questions as he raised are worthy of our attention. I would certainly
want to be better prepared than I am at this moment to attempt to deal
with the particular question he has asked. I thank him for his
statement. I have been listening to his statement from my office. He
raises serious questions which ought to be answered, ought to be
debated.
I think we are hurrying too fast into this situation. I, as the
Senator from Pennsylvania, have heard all of these predictions as to
how fast the Senate and House will act. It may be that the train has
gathered such momentum it will not be possible to slow it down, but I
hope and pray this decision can be put off until after the election. I
think it is too grave a decision. I think our fighting men and women
need to be shown much greater regard than this, that we would not rush
into having a vote on this resolution before it is adequately debated
and amended.
I view with great concern the judgment that history will make of us
for rushing into this decision, as we seem to be doing. I am concerned
that Members of both Houses will have their decision tainted by the
fact that it is going to be rendered in an atmosphere that is
supercharged with politics. I have always had a great deal of
confidence in the Senator from Pennsylvania, Mr. Specter. He is not one
to be rushed or stampeded into making a decision. He always asks
questions. He has the courage, the conviction, to stand up and state
his principles and ask questions. That is what I hear him doing now. I
am sorry I cannot respond to the questions the Senator posed, but I am
glad to have this opportunity to make the comment aboout the Senator
from Pennsylvania and what he is doing today, the questions he is
asking.
Mr. SPECTER. Madam President, I thank my distinguished colleague from
West Virginia for his response. I have raised quite a number of
questions in the presentation I have made today. I am prepared to honor
the President's request that we vote on this matter before we adjourn,
but I think we ought to take the time to debate that need. There are a
great many questions to be answered.
I look forward to having more of our colleagues on the floor. We were
scheduled to go to this resolution at 1 p.m. today, and it is now 1:23.
These issues about where the inspections are going to lead are
important. These questions about the ramifications of acting alone are
important. We do not want to repeat the mistakes of not going after bin
Laden, as we had good cause to prior to 9/11.
We accused the generals of always fighting the last war. We have
learned a bitter lesson from September 11, and we had cause to act in
advance. We have to ask all this.
There is another issue I mention briefly before concluding, and that
is the difference in language between the 1991 resolution, which says
the President is authorized to use the Armed Forces in order to achieve
the implementation of Security Council resolutions, and contrast it
with the language of the two resolutions which are now pending, the
resolution introduced by Senator Lieberman and another resolution
introduced by Senators Daschle and Lott which say the President is
authorized to use all means he determines to be appropriate.
``All means that the President deems to be appropriate'' is a
subjective standard, which is different from the authority which the
Congress gave President Bush in 1991, saying the President is
authorized to use the U.S. Armed Forces in order to achieve
implementation of Security Council resolutions, which we call in the
law ``objective standard'' as opposed to subjective standard.
When we have other Senators on the floor, I will look for an
opportunity to discuss this and to have a clarification as to what is
meant here.
I thank the Chair. I thank my colleague from West Virginia.
Exhibit 1
S. Con. Res. 78
Whereas the International Military Tribunal at Nuremberg
was convened to try individuals for crimes against
international law committed during World War II;
Whereas the Nuremberg tribunal provision which held that
``crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be
enforced'' is as valid today as it was in 1946;
Whereas, on August 2, 1990, and without provocation, Iraq
initiated a war of aggression against the sovereign state of
Kuwait;
Whereas the Charter of the United Nations imposes on its
members the obligations to ``refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state'';
Whereas the leaders of the Government of Iraq, a country
which is a member of the United Nations, did violate this
provision of the United Nations Charter;
Whereas the Geneva Convention Relative to the Protection of
Civilian Persons in Times of War (the Fourth Geneva
Convention) imposes certain obligations upon a belligerent
State, occupying another country by force of arms, in order
to protect the civilian population of the occupied territory
from some of the ravages of the conflict;
Whereas both Iraq and Kuwait are parties to the Fourth
Geneva Convention;
[[Page S10006]]
Whereas the public testimony of witnesses and victims has
indicated that Iraqi officials violated Article 27 of the
Fourth Geneva Convention by their inhumane treatment and acts
of violence against the Kuwaiti civilian population;
Whereas the public testimony of witnesses and victims has
indicated that Iraqi officials violated Articles 31 and 32 of
the Fourth Geneva Convention by subjecting Kuwaiti civilians
to physical coercion, suffering and extermination in order to
obtain information;
Whereas in violation of the Fourth Geneva Convention, from
January 18, 1991, to February 25, 1991, Iraq did fire 39
missiles on Israel in 18 separate attacks with the intent of
making it a party to war and with the intent of killing or
injuring innocent civilians, killing 2 persons directly,
killing 12 people indirectly (through heart attacks, improper
use of gas masks, choking), and injuring more than 200
persons;
Whereas Article 146 of the Fourth Geneva Convention states
that persons committing ``grave breaches'' are to be
apprehended and subjected to trial;
Whereas, on several occasions, the United Nations Security
Council has found Iraq's treatment of Kuwaiti civilians to be
in violation of international law;
Whereas, in Resolution 665, adopted on August 25, 1990, the
United Nations Security Council deplored ``the loss of
innocent life stemming from the Iraq invasion of Kuwait'';
Whereas, in Resolution 670, adopted by the United Nations
Security Council on September 25, 1990, it condemned further
``the treatment by Iraqi forces on Kuwait nationals and
reaffirmed that the Fourth Geneva Convention applied to
Kuwait'';
Whereas, in Resolution 674, the United Nations Security
Council demanded that Iraq cease mistreating and oppressing
Kuwaiti nationals in violation of the Convention and reminded
Iraq that it would be liable for any damage or injury
suffered by Kuwaiti nationals due to Iraq's invasion and
illegal occupation;
Whereas Iraq is a party to the Prisoners of War Convention
and there is evidence and testimony that during the Persian
Gulf War, Iraq violated articles of the Convention by its
physical and psychological abuse of military and civilian
POW's including members of the international press;
Whereas Iraq has committed deliberate and calculated crimes
of environmental terrorism, inflicting grave risk to the
health and well-being of innocent civilians in the region by
its willful ignition of 732 Kuwaiti oil wells in January and
February, 1991;
Whereas President Clinton found ``compelling evidence''
that the Iraqi Intelligence Service directed and pursued an
operation to assassinate former President George Bush in
April 1993 when he visited Kuwait;
Whereas Saddam Hussein and other Iraqi officials have
systematically attempted to destroy the Kurdish population in
Iraq through the use of chemical weapons against civilian
Kurds, campaigns in 1987-88 which resulted in the
disappearance of more than 182,000 persons and the
destruction of more than 4,000 villages, the placement of
more than 10 million landmines in Iraqi Kurdistan, and ethnic
cleansing in the city of Kirkuk;
Whereas the Republic of Iraq is a signatory to
international agreements including the Universal Declaration
on Human Rights, the International Covenant on Civil and
Political Rights, the Convention on the Prevention and
Punishment of the Crime of Genocide, and the POW Convention,
and is obligated to comply with these international
agreements;
Whereas section 8 of Resolution 687 of the United Nations
Security Council, adopted on April 3, 1991, requires Iraq to
``unconditionally accept the destruction, removal, or
rendering harmless, under international supervision of all
chemical and biological weapons and all stocks of agents and
all related subsystems and components and all research,
development, support, and manufacturing facilities'';
Whereas Saddam Hussein and the Republic of Iraq have
persistently and flagrantly violated the terms of Resolution
687 with respect to elimination of weapons of mass
destruction and inspections by international supervisors;
Whereas there is good reason to believe that Iraq continues
to have stockpiles of chemical and biological munitions,
missiles capable of transporting such agents, and the
capacity to produce such weapons of mass destruction, putting
the international community at risk;
Whereas, on February 22, 1993, the United Nations Security
Council adopted Resolution 808 establishing an international
tribunal to try individuals accused of violations of
international law in the former Yugoslavia;
Whereas, on November 8, 1994, the United Nations Security
Council adopted Resolution 955 establishing an international
tribunal to try individuals accused of the commission of
violations of international law in Rwanda;
Whereas more than 70 individuals have faced indictments
handed down by the International Criminal Tribunal for the
former Yugoslavia in the Hague for war crimes and crimes
against humanity in the former Yugoslavia, leading in the
first trial to the sentencing of a Serb jailer to 20 years in
prison;
Whereas the International Criminal Tribunal for Rwanda has
indicted 31 individuals, with three trials occurring at
present and 27 individuals in custody;
Whereas the United States has to date spent more than $24
million for the International Criminal Tribunal for the
Former Yugoslavia and more than $20 million for the
International Criminal Tribunal for Rwanda;
Whereas officials such as former President George Bush,
Vice President Al Gore, General Norman Schwarzkopf and others
have labeled Saddam Hussein a war criminal and called for his
indictment; and
Whereas a failure to try and punish leaders and other
persons for crimes against international law establishes a
dangerous precedent and negatively impacts the value of
deterrence to future illegal acts: Now, therefore, be it
Resolved by the Senate (the House of Representatives
concurring), That the President should--
(1) call for the creation of a commission under the
auspices of the United Nations to establish an international
record of the criminal culpability of Saddam Hussein and
other Iraqi officials;
(2) call for the United Nations to form an international
criminal tribunal for the purpose of indicting, prosecuting,
and imprisoning Saddam Hussein and other Iraqi official who
are responsible for crimes against humanity, genocide, and
other violations of international law; and
(3) upon the creation of such an international criminal
tribunal seek the reprogramming of necessary funds to support
the efforts of the tribunal, including the gathering of
evidence necessary to indict, prosecute and imprison Saddam
Hussein and other Iraqi officials.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. What is the parliamentary situation?
The PRESIDING OFFICER. The majority has 2 minutes 41 seconds
remaining in morning business, and the minority has 7 minutes
remaining.
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