[Congressional Record Volume 148, Number 151 (Wednesday, November 20, 2002)]
[Senate]
[Pages S11699-S11703]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRESIDENTIAL AUTHORITY TO INTRODUCE ARMED FORCES INTO IRAQ
Mr. BYRD. Mr. President, earlier this year, I wrote to a number of
constitutional scholars advising them that I was concerned about
reports that our Nation was coming closer to war with Iraq. I asked a
number of esteemed academics their opinion as to whether they believed
that the Bush administration had the authority, consistent with the
U.S. Constitution, to introduce U.S. Armed Forces into Iraq to remove
Saddam Hussein from power.
All of the scholars I consulted responded by stating that, under
current circumstances, the President did not have such authority.
Several of the professors I consulted, namely Peter Raven-Hansen of
George Washington University Law School, and Philip Trimble, Professor
Emeritus of the UCLA School of Law, were kind enough to call and
discuss their views on this subject with my office. I would like to
take this opportunity to thank them for taking the time to provide me
with their thoughts on this matter.
While those professors contacted me by phone, others provided written
responses. I have previously submitted for the Record the responses of
professors Michael Glennon of the Fletcher School of Law and Diplomacy
at Tufts, Jane Stromseth of Georgetown University Law Center, Laurence
Tribe of Harvard Law School, and William Van Alstyne of the Duke
University School of Law.
Now, I would like to submit four additional responses I received on
this same subject from professors Jules Lobel of the University of
Pittsburgh School of Law, Thomas M. Franck of the New York University
School of Law, Bruce Ackerman of Yale Law School, and Larry Sabato of
the University of Virginia. I found their analyses of this important
issue to be exceptionally learned and informative. For this reason, I
ask unanimous consent that their responses be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S11700]]
University of Pittsburgh
School of Law
Pittsburgh, Pennsylvania, August 2, 2002.
Senator Robert C. Byrd,
U.S. Senate, Committee on Appropriations, Washington, DC.
Dear Senator Byrd: Thank you for your letter of July 22,
2002 requesting my analysis of President Bush's
constitutional and/or legislative authority to introduce U.S.
Armed Forces into Iraq for the purpose of removing Saddam
Hussein from power. I too, am deeply concerned that the Bush
Administration is moving toward war with Iraq, and doing so
without congressional authorization. I only received your
letter Thursday, August 1 and unfortunately leave for
vacation on Saturday August 3rd. Because of the importance of
this issue, I intend to send you my opinion analysis today by
FAX.
I. President's Constitutional Authority
As you correctly state, Article I, Section 8 of the
Constitution provides Congress the power to, among other
things, declare war. (It also provides an important power
which is omitted from your letter, but which I and other
scholars have argued was designed to prevent the President
from unilaterally engaging in reprisals, or limited wars--the
power to issue letters of marque and reprisal.)
The meaning of the power to declare war is course,
contested, with Presidents at times asserting the power to
engage U.S. troops abroad in various limited actions. I,
along with many other constitutional scholars believe that
the Constitution requires congressional authorization for all
non-defensive, non-emergency deployment of U.S. forces in
combat against another country.\1\ Nonetheless, proponents of
Executive power argue that the President can initiate minor
uses of force without obtaining congressional approval.
Despite this dispute, virtually all scholars agree with Judge
Greene's interpretation of the war powers clause in the case
of Dellums v. Bush: where ``the forces involved are of such
magnitude and significance as to present no serious claim
that a war would not ensue if they became engaged in
combat,'' Congress has the authority under the Constitution
to decide upon whether to go to war. 752 F. Supp. 1141,
(D.D.C. 1990). In Dellums, Judge Greene held that in the
context of the U.S. threat of war against Iraq over its
invasion of Kuwait, ``the Court has no hesitation in
concluding that an offensive entry into Iraq by several
hundred thousand United States servicemen . . . could be
described as a `war' within the meaning of Article I, Section
8, Clause II of the Constitution'' To put it another way: the
Court is not prepared to read out of the Constitution the
clause granting to the Congress, and to it alone, the
authority ``to declare war.'' 752 F. Supp., supra at 1146.
---------------------------------------------------------------------------
\1\ Jules Lobel, Little Wars and the Constitution, 50 Miami
L. Rev. 61 (1995). See letter dated October 14, 1994 from
Professors Bruce Ackerman (Yale), Abram Chayes (Harvard),
Lori Damrosch (Columbia), John Hart Ely (Stanford and Miami
visiting), Gerald Gunther (Stanford), Louis Henkin
(Columbia), Harold Hongju Koh (Yale), Philip B. Kurland
(Chicago), Laurence H. Tribe (Harvard), and William Van
Alystyne (Duke) reprinted 89 Am. J. Int'l L. 127, 130 (1995)
(Constitution ``reserves to Congress alone the prerogative
and duty to authorize initiation of hostilities''). (See also
letter dated August 24, 1994 from same professors requesting
that President Clinton seek and obtain Congress' express
prior approval before launching a military invasion of
Haiti.) See also Ely, War and Responsibility, supra at p. 1,
66-67; Louis Henkin, Constitutionalism, Democracy and Foreign
Affairs 40 n.* (1990).
---------------------------------------------------------------------------
In the present situation the magnitude and significance of
any United States invasion of Iraq to overthrow Saddam
Hussein requires congressional approval. The courts, scholars
and even past Administrations have recognized that offensive
action involving significant numbers of U.S. troops facing a
substantial enemy requires congressional approval. See, e.g.,
Mitchell v. Laird, 488 F.2d 611, 613-14 (D.C. Cir. 1973);
Berk v. Laird, 429 F.2d 302, 305 (2d Cir. 1970); Moore, The
National Executive and the Use of the Armed Forces Abroad, in
2 The Vietnam War and International Law 808, 814 (Falk ed.
1969). See also Moore, Emergency War Powers, the U.S.
Constitution and the Power to Go to War, 159, 161 in The U.S.
Constitution and the Power to Go to War (Gary Stein & Morton
Halpern eds., 1994); Peter Spiro, War Powers and the Sirens
of Formalism, 68 N.Y.U. Rev. 1338, 1353 (1993). See also
Joseph Biden & John Pitch III, The War Power at a
Constitutional Impasse: A Joint Decision Solution, 77
Georgetown L.J. 367, 400 (1988); Major Geoffrey S. Corn,
Presidential War Power: Do the Courts Offer Any Answers?, 157
Mil. L. Rev. 180, 252 (1998) (``Certainly the initiation of
significant offensive hostilities in such a policy decision,
which under our constitutional system of government should
not be made without the approval of Congress.'') See also
Letter of Assistant Attorney General Walter Dellinger,
September 27, 1994, reprinted at 89 Am. J. Int'l 122, 126
(1995) (recognizing that where U.S. forces attacked another
country without the consent of the recognized government,
leading to prolonged hostilities, inflicting substantial
casualties on the enemy, and involving such ``extreme'' uses
of force as sustained air ``bombardment,'' the United States
was engaged in ``war'' for constitutional purposes requiring
congressional authorization).
William P. Rogers, when he was President Nixon's Secretary
of State, argued that Congress' power to declare war is not
``purely symbolic'':
``While the legislative form in which the power is
exercised may change, nevertheless the constitutional
imperative remains: if the nation is to be taken into war,
the critical decisions must be made only after the most
searching examination and on the basis of a national
consensus, and they must be truly representative of the will
of the people. For this reason, we must ensure that such
decisions reflect the effective exercise by the Congress and
the President of their respective constitutional
responsibilities.''
William Rogers, Congress, the President and War Powers, 59
Cal. L. Rev. 1194, 1212 (1971). Therefore, I conclude that
any invasion of Iraq to remove Saddam Hussein would involve
such significant forces and significant casualties so as to
be inescapably categorized as a war which under Article I,
Section 8 must be authorized by Congress.
II. War Powers Resolution
The War Powers Resolution clearly would apply to any U.S.
effort to attack Iraq to remove Saddam Hussein, since such an
effort would introduce U.S. Armed Forces into imminent or
actual hostilities. Therefore Section 4(b)'s limitation on
such action to 60 (or 90) days would apply, as would the
reporting or consulting provisions of the Resolution. I would
also argue that the Resolution was not intended to, nor can
it override the Constitution's clear proscription that only
Congress can decide to engage the U.S. in an offensive attack
on another country. Therefore, prior to any such invasion,
congressional authorization must be sought and obtained by
the President.
III. Potential Legislative Authority for War Against Iraq
You also ask about two potential legislative sources of
authority for a Presidential decision to use force against
Iraq. Public Law No. 107-40 does not provide authorization
for the President to attack Iraq. The language of Section 2
of the Act authorizes the President to use force against
nations he determines planned, authorized, committed or aided
the terrorist attacks that occurred on September 11, 2001, or
harbored organizations or individuals who planned those
attacks, in order to prevent any future acts of international
terrorism by such organizations. To date, the Executive
Branch has offered no evidence that Iraq planned, aided or
harbored Al Qaeda in connection with the September 11
attacks. The statute is clear that the authorization is
limited to using force in connection with responding to
nations, organizations and individuals connected with the
September 11 attack, and did not authorize any broad based
response to all forms of international terrorism. Indeed, the
original bill that the President submitted for authorization
was so broad as to plausibly authorize an attack on Iraq.
Congress refused to enact the President's proposed bill;
instead agreeing on the much narrower language currently
contained in Section 2 of Pub. L. No. 107-40.
Nor does Pub. L. No. 102-1, authorizing the President to
use force in 1991 to reverse Iraq's illegal invasion of
Kuwait, provide any authorization for a current assault to
remove Saddam Hussein. I understand the Administration's
argument to be that since Iraq has not complied with the
cease fire resolution 687 ending the 1991 war, Resolution 678
is revived, and thus both the Security Council's and
Congress' authorization of force against Iraq pursuant to
Resolution 678 are revived. This position is clearly
erroneous and has been continuously rejected by the Security
Council. Michael Ratner and I wrote a lengthy article
published in the American Journal of International Law, 93
Am. J. Int'l Law 124 (1999), refuting this position which had
been articulated by the Clinton Administration. To summarize
our general view:
(1) Permanent cease fires such as occurred after the 1991
war generally terminate any U.N. authorization of force and
such authorizations are not revived by any purported material
breach by one side to the conflict.
(2) Article 34 of Resolution 687 is quite explicit that the
Security Council, and not individual states, has the
authority to determine whether Iraq has violated Resolution
687 and also what ``further steps,'' including presumably the
use of force, to take in order to implement that Resolution.
(3) The history of Resolution 687 also supports the
conclusion that it terminated the authorization of force
contained in Resolution 678. After the suspension of
hostilities in 1991, a provisional cease fire, Resolution 686
was adopted. Resolution 686 explicitly refers to Resolution
678 and ``recognizes'' that it ``remain[s] valid'' during the
period required for Iraq to comply with the provisional cease
fire's terms. The Security Council dropped that language in
Resolution 687 which, unlike 686 does not recognize that
Resolution 687 remains valid. Of all the detailed provisions
in the cease-fire, only paragraph 4 guaranteeing the
inviolability of the Iraq-Kuwait border contains language
authorizing the use of force, and then only by the Security
Council and not by individual states. That the Council
decided to guarantee Kuwait's boundary by force if
necessary--a guarantee that is central to both Article 2(4)
of the Charter and the 1991 Persian Gulf war--excludes an
interpretation of Resolution 687 as continuing the Resolution
687 authorization so as to allow individual nations to use
force to rectify other, presumably less central
violations. It would be illogical for Resolution 687 to
require Security Council action to authorize force against
threatened boundary violations, yet dispense with such
action if Iraq violated another provision of the
resolution.
[[Page S11701]]
(4) The subsequent history of the efforts to enforce
Resolution 687 demonstrates that only the Security Council
could authorize the use of force to enforce that Resolution's
terms. Resolution 1154 adopted on March 2, 1998 clarified the
view of a majority of the Council that its explicit
authorization was required to renew the use of force. As the
Russian delegate noted, ``No one can ignore the resolution
adopted today and attempt to act by bypassing the Security
Council.'' Similarly, France stated that the resolution was
designed ``to underscore the prerogatives of the Security
Council in a way that excludes any question of automaticity .
. . It is the Security Council that must evaluate the
behavior of a country, if necessary to determine any possible
violations, and to take the appropriate decisions.'' Other
members of the Security Council concurred.
Moreover, even if the Administration is correct and as a
matter of international law Resolution 678 is still in effect
and constitutes a U.N. authorization of force, the
congressional authorization of force in Pub. L. No. 102-1 is
significantly narrower than Resolution 678. Prior
Administrations have pointed out that Resolution 678 not only
authorized force to enforce the exant Security Council
Resolutions, but also to ``restore international peace and
security in the area,'' which could conceivably be read to
authorize removing Saddam Hussein from power. However, Pub.
L. No. 102-1 contains no equivalent language. The
congressional authorization only permits the President to use
force pursuant to Resolution 678 ``in order to achieve
implementation of Security Council Resolutions 600, 661, 662,
664, 665, 666, 667, 669, 670, 674 and 677. Since those
resolutions have now all been implemented and are not now at
issue (Resolution 687 is of course not mentioned in Pub. L.
No. 102-1), that law can not by any conceivable argument be
interpreted to authorize the use of force in the current
situation.
The Administration will undoubtedly argue that it has been
using force against Iraq for the past decade, enforcing the
no fly zones, and occasionally bombing Iraq, such as the
December 1998 four days of air strikes. Those uses of force
in my opinion and the opinion of many experts, and majority
of the Security Council have been illegal and
unconstitutional. That Congress may have for political
reasons acquiesced in or not strongly opposed such actions
does not, in my opinion, make them constitutional.
Moreover, whatever the constitutional and international
legality of those relatively minor uses of force, what the
Administration now proposes is of a totally different
character--both in magnitude and purpose. The scale,
magnitude and significant of an invasion of Iraq to remove
Saddam Hussein can not conceivably be covered by enforcing
the no-fly zone and intermittent bombing precedent. What is
clearly required in the present situation is an open
congressional debate and new authorization of force.
I have been involved in constitutional War Powers issues
for many years, both as a scholar and as a litagtor. As a
litigator, I have been bipartisan in opposing presidential
uses of force without congressional authority. I was lead
counsel for 57 democratic legislators who challenged the
elder President Bush's plan to go to war to drive Iraq from
Kuwait without receiving congressional authorization. I was
also lead counsel for a group of predominantly Republican
members of Congress led by Congressman Campbell who
challenged President Clinton's bombing of Yugoslavia in
response to the Kosovo crisis. I have also written on issues
involving constitutional war powers, with articles in the
Harvard International Law Journal, University of Pennsylvania
Law Review, University of Miami Law Review, American Journal
of International Law and other journals.
I apologize for this rushed answer to your letter, but I
wanted to get you a response before leaving on vacation. As
you can see, I, like you, have a deep concern about these
constitutional issues, and would be happy to assist you or
other legislators in any manner to ensure that these
questions are properly debated and voted on by Congress. I
will be out of my office for several weeks, but will call in
for messages and would be available for any consultation you
might wish. My office number is 412-648-1375 and my FAX
number is 412-648-2649.
Yours truly,
Jules Lobel.
____
University of Pittsburgh
School of Law,
Pittsburgh, PA, October 3, 2002.
Hon. Robert Byrd,
U.S. Senate,
c/o Kathleen Hatfield.
Dear Senator Byrd: Article 2(4) of the UN Charter prohibits
preemptive attacks on other nations. The Charter only allows
a nation to use force (1) in self-defense where it has either
been attacked or faces eminent attack, or (2) when the
Security Council authorizes such use of force. Article 6 of
the U.S. Constitution makes treaty provisions such as Article
2(4) of the UN Charter part of the ``supreme law of the
land.''
For Congress to authorize a preemptive attack on Iraq
without imposing a condition that the UN Security Council
first approve such force would therefore violate both the
Charter and our own supreme law. The general assumption has
been that Congress should not and cannot authorize aggressive
war. Indeed, the prohibition on aggression is considered a
fundamental, peremptory norm of international law and the
D.C. Circuit Court of Appeals has suggested that Congress
does not have the Constitutional authority to authorize
actions that violate such norms. CUSCLIN v. Reagan, 859 F2d
929, 941 (D.C.Cir. 1988).
Therefore, if Congress wants to act legally, it must at
minimum include in any authorization a requirement that the
Security Council first approve the use of force before the
President launches such attack. Including such a condition
will also hopefully force Congress to discuss and debate the
legality of preemptive strikes.
Sincerely,
Jules Lobel,
Professor of Law.
____
New York University
School of Law,
New York, NY, September 4, 2002.
Senator Robert C. Byrd,
Chairman, Committee on Appropriations, U.S. Senate,
Washington, DC.
Dear Senator Byrd: I regret that my absence, until
yesterday, has delayed my response to your letter of July 22,
2002. The issues as to which you have asked me to comment are
ones of great importance to the constitutional structure that
underpins our freedoms as Americans. I have therefore drafted
a bare-bones response for the sake of timeliness, but would
be glad to provide further comment and sources as to any part
of this submission.
(1) The War Powers Resolution. Because of its
unsatisfactory drafting, the President's obligations towards
Congress are quite limited. Under Section 5(b) the President
has broad authority to conduct hostilities before Congress'
approval is required. Since the provision of Section 5(c) has
been rendered migratory by decision of the Supreme Court
declaring the ``legislative veto'' essentially
unconstitutional, the Act now has more force in validating,
rather than invalidating, presidential war-making.
(2) Pub. L. No. 107-40 (9/18/01). This wildly overbroad
authorization for presidential war-making--more recently
egregiously echoed in legislation authorizing presidential
use of force in connection with Americans who may be
surrendered to the International Criminal Court by foreign
governments--allows the President broad latitude to use force
against any nation ``he determines'' to have ``planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001.'' And it even specifies that
this broad delegation constitutes authorization under Section
5(b) of the War Powers Resolution. ``He determines'' seems to
convey unlimited discretion It can be argued, however, that
such ``he determines'' language has been defined by courts in
reviewing other examples of delegates executive/
administrative authority as implying that the authority must
be exercised reasonably and justifiably. It can be further
argued, accordingly, that the President must justify the
reasonableness of his determination to the Congress. It is
not, however, a very powerful argument and, in the end, it
still leaves broad discretion with the President. It can also
be argued that the delegation was meant to be tied to the
events of September 11 and that the President's authority
therefore does not extend to the use of force when there is
no demonstrable connection to those events.
(3) Pub. L. No. 102-1 (1/14/91). This provision is
interpreted by the Executive as authorizing the use of force
against Iraq for an indefinite period of time. Congress,
however, wisely tied the authorization to the use of force
``pursuant to United Nations Security Council Resolution 678
(1990).'' The force of argument that this authorization
continues to be in effect therefore depends on whether the
Security Council Resolution 678 remains effective. That
question compels consideration of international law:
particularly, Security Council Resolution 687 of 3 April
1991, which established a cease-fire but imposed on Iraq a
weapons monitoring regime as to which it is now clearly in
violation. It is unclear from the text of Resolution 687
whether this meant to continue, suspend, or terminate
Resolution 678. Two considerations are relevant. One is that
para. 33 of S/Res/687 declares that, on the acceptance of the
conditions set by the Council, ``a formal ceasefire is
effective'' between Iraq and its opponents and that (para.
34) the council declares itself ``to remain seized of the
matter'' and retains for itself the power ``to take such
further steps as may be required for the implementation of
the present resolution and to secure peace and security in
the area.'' This does not seem to authorize states to use
force whenever they deem Resolution 687 to have been
violated, but, rather, makes such action conditional on
specific new Security Council authorization. (Note that, even
were such new authorization forthcoming, it would not
automatically revive the authority Congress gave the
President under Pub. L. No. 102-1.) The other consideration
is that the Council has never passed a resolution objecting
to the many instances in which the U.S. and its allies have
acted on their own (for example, by establishing and
enforcing ``no-fly zones''). This omission by the Security
Council is better understood, however, in terms of the
realities of the ``veto'' in the Council, and its deterrent
effect, than as evidence of Council acquiescence in such use
of force.
In sum:
(1) The war Powers Resolution does not help Congress, and
this may further illustrate the need for its repeal.
(2) Congress gave away far too much of its power in
enacting Pub. L. No. 107-40 and
[[Page S11702]]
should avoid such extremely broad authorizations--in futuro
and extending to uncertain circumstances--of war-making
authority. Nevertheless, it can be argued that the authority
must be read to include a ``reasonably justified'' standard
for its exercise.
(3) Pub. L. No. 102-1 does not authorize the use of force
against Iraq because it is limited to war-making under the
aegis of Security Council Resolution 678, which was suspended
by Security Council Resolution 687.
I hope this will be of some assistance. With good wishes,
Cordially yours,
Thomas M. Franck,
Professor of Law Emeritus.
____
[From the Los Angeles Times, May 31, 2002]
Bush Must Avoid Shortcuts on Road to War
(By Bruce Ackerman)
President Bush has been busy reassuring Europeans that he
``has no war plans'' on his desk for an invasion of Iraq.
Such statements can only evoke concern at home. Even when the
president receives his plans from the military, he lacks the
authority to execute them. The Constitution makes him
commander in chief, but only Congress can declare war.
We have been here before.
Two days after the congressional elections of 1990, the
first President Bush ordered a massive increase of American
troops for an offensive against Iraq. Dick Cheney, then
Defense secretary, publicly announced that the president did
not ``require any additional authorization from the Congress
before committing U.S. forces to achieve our objectives.''
Fifty-four members of Congress responded by going to court
and demanding an injunction against military action until
both houses gave their explicit approval. The administration
was unimpressed by the lawsuit. It told the court to stay out
and treat the matter as a ``political question.''
The case speedily came to trial in federal district court,
where Judge Harold Greene roundly rejected the president's
claims.
While handing Congress a victory on the merits, Greene was
more cautious when it came to a remedy. In his view, the time
was not yet ripe for decisive judicial intervention. As far
as he could tell, a peaceful settlement with Iraq was still
possible, and it wasn't clear whether a majority of Congress
would oppose the war if negotiations broke down. So why
intervene when the whole issue might dissolve and make
judicial intrusion unnecessary?
The next move was up to the elder President Bush: He might
press on unilaterally and challenge Congress to return to
Greene's court for an injunction once war was clearly in the
cards. Or he could call a halt to the escalating
institutional battle and ask both houses explicitly to
authorize the war.
This was an easy choice for the public: Polls showed that
more than 70% favored explicit congressional authorization.
After mulling over the matter, the president bowed to the
combination of law and public opinion. In January 1991, he
dropped his unilateralist claim and formally requested both
houses to approve the attack against Saddam Hussein.
The first shot was fired only after Congress gave its
consent.
The argument for legislative authorization is more
compelling the second time around. In 1991, the country was
responding to a clear act of aggression. Nobody could doubt
that Iraq had invaded Kuwait. And a lengthy congressional
debate might have cost American lives because Hussein's
soldiers would have had more time to prepare for the
invasion.
The second President Bush can't take advantage of either
extenuating factor.
Rather than pointing to a clear boundary-crossing, he will
be offering circumstantial evidence of Iraq's atomic and
biological weapons program. If this evidence is truly
persuasive, he should have no trouble convincing a majority
of Congress. But if the president attempts to skirt Congress,
it will cast doubt on whether his claims can survive a fair
test in the court of public opinion.
Nor is time of the essence. We aren't dealing with a
situation where Iraqi troops can dig in while Congress
dithers.
A second American invasion would, at most, prevent a future
threat to national security. Nobody seriously suggests that a
debate of a week or a month would cause permanent damage.
There is no good reason for Bush to deviate from the
precedent set by his father in 1991.
But aren't we already embarked on a ``war against
terrorism''? In invading Iraq, isn't the president simply
opening another front in an ongoing struggle? This might
serve as a TV sound bite, but it is nonsense as a matter of
law.
Up until now, Congress authorized ``necessary and
appropriate force'' only against those who ``aided the
terrorist attacks that occurred on Sept. 11.'' The Bush
administration has failed to implicate Hussein in those
attacks. If a second invasion of Iraq is justified, it is
because of a future threat.
The real question is how the administration meets its
constitutional responsibilities. The first President Bush did
not abandon unilateralism without a fight. Will his son also
escalate the institutional confrontation at home as he
accelerates war preparations abroad?
This is no time for constitutional brinkmanship. The
president should take the first opportunity to say that he
respects the constitutional precedents established during the
Gulf War. It will be tough enough to confront the prospect of
a major war soberly without attempting an end run around the
people's representatives.
____
Center for Politics,
Charlottesville, VA, August 28, 2002.
Hon. Robert C. Byrd,
U.S. Senate,
Washington, DC.
Dear Senator Byrd: Thank you for requesting my views on the
U.S. constitutional and political questions surrounding
presidential war-making authority, especially as they apply
to the current situation with Iraq. I am happy to offer them,
for whatever they may be worth, and I will attempt to do so
in un-professorial fashion, by being relatively brief.
It is clear that the Founders fully trusted neither the
Executive nor the Legislature with war powers, and so they
divided them--making the President the commander-in-chief and
giving to the Congress the right to declare war. A reasonable
inference, then, is that the Founders expected the two
elective branches to share war powers, and to check and
balance one another in this life-and-death arena, as in so
many other areas of governmental authority. Neither the 20th
Century history of executive usurpation of congressional war
powers, nor the various interpretations and applications of
the War Powers Resolution since 1973, can change this
fundamental truth. Simply put, the executive usurpation in
the last century was constitutionally flawed. Moreover, the
unquestioned legislative goal of the War Powers Resolution
was to return to the Founders' original intent--that the
Congress should be thoroughly involved, and not just informed
or `consulted' after the fact, in this nation's acts of war.
Unilateral presidential action in Iraq based on S.J.Res.23
(enacted after September 11, 2001) or the Congress' ``Iraq
Resolution'' of 1991 would be a real stretch, a result-
oriented rationalization that would be unwise and
constitutionally suspect.
Given the constitutional imperatives of war-making, it is
difficult to understand how any President could argue that
Congress does not have a co-equal role to play in an act of
war by this country against another sovereign state. This is
especially true in a case such as Iraq, where immediate
attack is not required, and where planning and build-up for
war will take many weeks. Let's note, too, that these
preparations will hardly be a secret, and that they will be
reported in some detail to the American people, and indeed
the entire world, including the enemy state.
My own academic specially is politics, and here the case
for full congressional consultation is overwhelming. A
President who undertakes a risky foreign war without the
expressed support of the American people is courting
disaster. Since (blessedly) we do not have any process for
national referendum, and since our system of government is
representative democracy, the logical institution to provide
both careful, elite review and broad, popular mandate for any
proposed war is the Congress. Presidents have often unwisely
tried to avoid this step, preferring complete executive
branch control. But surely a lingering, invaluable lesson
from the United States' tragic involvement in Vietnam is the
necessity to bring along the congress, and through it, the
American people, in a united commitment to succeed whenever
the lives of our soldiers and our national treasure are on
the line.
While initially reluctant to seek congressional
authorization for the Persian Gulf War in 1990-91, President
George H.W. Bush correctly asked for and received the support
of the Congress after a healthy, high-toned, and memorable
debate. At the time, no one knew for sure that the war with
Saddam Hussein could be won so quickly and easily. If the
fortunes of war had not been so favorable to our country, and
the Persian gulf conflict had taken many months to win,
President Bush would have been especially grateful for that
congressional vote to proceed. It would have provided a firm
basis for sustaining support and prosecuting the war until
victory was complete. So it will be in 2002-03 in any new war
with Iraq. Saddam Hussein may or may not fall quickly, and
the post-war turmoil may or may not engulf the Middle East
and entangle the United States for months or years. But come
what may, a congressional vote of authorization would provide
President George W. Bush with the political support to ask
for patience and sacrifice, should they be needed, over a
lengthy period of time. Our elected leaders in both
representatives branches would have given proper
constitutional consent, and as a nation, we would all be in
it together, to do what it take to win for as long as it
takes to win.
And what if the Congress, in its wisdom, should choose not
to authorize a war with Iraq at this time? Then our political
system would have worked equally well. For if one or both
houses of Congress should choose to say no, it would mean
that Congress sees that a war with Iraq has consequences too
serious to risk, or that such a war would not have the
requisite support of the American people. With the failure of
Vietnam as well as the success of the Persian Gulf War in
mind, the Congress might decide that this war could be closer
to the former than the later. And should Congress so decide,
and make this case convincingly to the citizenry, then surely
the nation would be grateful
[[Page S11703]]
since one Vietnam is enough for all of American history.
Senator, I hope this analysis has been of some assistance
to you. Please let me know if I can help in any other way.
And please also accept my warm wishes and genuine admiration
for your work on our behalf.
Yours sincerely,
Larry J. Sabato,
Director, U. VA. Center for Politics &
University Professor of Politics.
Mrs. FEINSTEIN. Mr. President, I rise to address the fact that by the
end of the year more than 2 million Americans will have exhausted their
unemployment insurance.
There is no more pressing issue facing our Nation's workforce, and
yet Congress has chosen to put partisanship ahead of what nearly
everyone agrees is smart policy.
By passing widely divergent bills, the House and the Senate have
virtually ensured that on December 28 of this year thousands of workers
will be in the impossible position of trying to feed, clothe, and house
their families with no work and no benefits.
I strongly support the Emergency Unemployment Compensation Act of
2002, a bipartisan compromise bill which was introduced in the Senate
in late September.
This bill, introduced by Senators Wellstone, Clinton, and Kennedy,
with the support of 33 Senators, extends unemployment benefits
nationwide for 13 weeks, and provides 20 weeks of extended benefits for
California and other high unemployment States.
It provides crucial temporary assistance to those who have been
hardest hit by the current economic downturn, and provides them a
chance to support themselves and their families while they look for
work.
Although the compromise bill passed by the Senate does not include
the 20-week extension that is vital to States such as California, which
suffer from a higher unemployment rate than the national average, it
provides a meaningful extension that could help American families,
especially during the Christmas holiday.
Let me stress that this bill is the product of bipartisan compromise,
and is supported by Senator Nickles and other Republicans who have been
vocal on this issue.
At the moment, millions of Americans have lost their job and are
unable to find another, despite their efforts to reenter the labor
force. The number of Americans unable to find employment has increased
from 5.7 million at the end of 2000 to more than 8.2 million today.
Even more disturbing, due to continued economic weakness, the number
of Americans who have been out of work for over 6 months has almost
doubled from 900,000 to 1.5 million in the past year.
Between May and July of this year, approximately 900,000 workers
exhausted the benefits made available through the extension that was
passed in March.
By the end of this year, that number will increase to 2.1 million
individuals. Those are the individuals at greatest risk for falling
through the social safety net we have provided for them.
This illustrates the critical need for an extension of unemployment
insurance that makes sense.
When the national economy was booming 2 years ago, California was
particularly blessed. California's economy grew at double-digit rates,
and California become the fifth-largest economy in the world.
Billions of dollars of investment flowed into our State, and
thousands of talented workers moved to California to take advantages of
opportunities in Silicon Valley and other growth engines of the New
Economy. Now that picture is dramatically different.
A recent report by a group of economists at UCLA predicted that
California's unemployment rate will rise to 6.5 percent next year, and
that nonfarm jobs in the San Francisco Bay area contracted by an annual
rate of 4.6 percent between April and June of this year. After dropping
to a decade-long low of 4.7 percent in December of 2000, the
unemployment rate is back up to 6.4 percent as of the end of October.
The number of Californians receiving unemployment benefits has
increased to 470,000 from 430,000 1 year ago.
During this period of great economic hardship, we have a duty to give
people the chance to get back onto their feet. This is an obligation
that we have met in the past, most recently when faced with an economic
downturn during the first Bush administration.
The Senate voted in 1991 to extend temporary unemployment insurance
on five separate occasions. Each time such extensions were approved by
overwhelming bipartisan majorities.
Therefore, I call on the House and Senate leadership to ensure that
an extension of unemployment benefits for a full 13 weeks be the first
item considered during the 108th Congress. Although that will not
prevent the expiration of benefits for many Americans, it will provide
a fairly rapid restoration of benefits to those who will be cut off at
the end of the year.
With that goal in mind, I have sent a letter to Speaker Hastert and
Senator Lott with the signatures of more than 40 of my colleagues in
the Senate, asking them to bring up an extension of unemployment
insurance immediately upon reconvening next year.
Let me be clear: by ducking this issue we seem to be hoping that this
problem will disappear.
It will not, and if we do not address it now, we will not be living
up to our obligation to the families of this Nation.
____________________