[Congressional Record Volume 160, Number 10 (Thursday, January 16, 2014)]
[Senate]
[Pages S441-S443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KAINE (for himself, Mr. McCain, and Mr. King):
  S. 1939. A bill to repeal the War Powers Resolution and to provide 
for proper war powers consultation, and for other purposes; to the 
Committee on Foreign Relations.
  Mr. McCAIN. Mr. President, I am pleased today to join my colleague, 
the junior Senator from Virginia, as we introduce the War Powers 
Consultation Act of 2014.
  This legislation is the final product of the National War Powers 
Commission, which was a bipartisan effort co-led by former Secretary of 
State Jim Baker and former Secretary of State Warren Christopher. The 
commission was set up by the Miller Center at the University of 
Virginia to devise a modern and workable war powers consultation 
mechanism for the executive and legislative branches. It included some 
of our Nation's most distinguished and respected thinkers and 
practitioners of national security policy and law. In 2008, after more 
than a year of hard work, the commission released the final product--an 
actual legislative proposal to repeal and replace the War Powers 
Resolution of 1973, which no American President has ever accepted as 
constitutional.
  As does my colleague, I view our introduction of this legislation 
today as the start of an important congressional and national debate, 
not the final word in that debate. We wish to pick up where the 
National War Powers Commission left off 6 years ago, and we do so fully 
understanding and hopeful that this legislation should be considered 
and debated and amended and improved through regular order.
  My colleague from Virginia has done a great job on this legislation, 
and I am proud to join him. I wish to expand a bit on why updating the 
War Powers Resolution is such a worthwhile endeavor for the Senate to 
consider right now.
  The Constitution gives the power to declare war to the Congress, but 
Congress has not formally declared war since June of 1942 even though 
our Nation has been involved in dozens of military actions of one scale 
or another since that time. There is a reason for this. The nature of 
war is changing. It is increasingly unlikely that the combat operations 
our Nation will be involved in will resemble those of World War II, 
where the standing armies and navies of nation states squared off 
against those of rival nation states on clearly defined fields of 
battle. Rather, the conflicts in which increasingly we find ourselves 
and for which we must prepare will be murkier, harder to reconcile with 
the traditional notions of warfare; they may be more limited in their 
objectives, their scope, and their duration; and they likely will not 
conclude with a formal surrender ceremony on the deck of a battleship.
  The challenge for all of us serving in Congress is this: How do we 
reconcile the changing nature of war with Congress's proper role in the 
declaration of war? It is not exactly a new question, but it is a 
profound one, for unless we in Congress are prepared to cede our 
constitutional authority over matters of war to the executive, we need 
a more workable arrangement for consultation and decisionmaking between 
the executive and legislative branches.
  We have seen several manifestations of this challenge in recent 
years. In 2011 President Obama committed U.S. military forces to combat 
operations in Libya to protect civilian populations from imminent 
slaughter by a brutal, anti-American tyrant. I, for one, believe he was 
right to do so. But 6 months later, when our armed services were still 
involved in kinetic actions in Libya--not just supporting our NATO 
allies but conducting air-to-ground operations and targeted strikes 
from armed, unmanned aerial vehicles--the administration claimed, as 
other administrations would, that it had no obligations to Congress 
under the War Powers Resolution because our Armed Forces were not 
involved in combat operations. That struck many Members of Congress, 
including me, as fundamentally at odds with reality, and unfortunately 
it pushed more Members of Congress into opposition against the mission 
itself.
  More recently, we saw the opposite problem manifested with regard to 
Syria. Perhaps due to the backlash in Congress that the 
administration's handling of the Libya conflict engendered, President 
Obama decided to seek congressional authorization for limited 
airstrikes against the Assad regime after it slaughtered more than 
1,400 of its own citizens with chemical weapons last August. An 
operation that likely would have lasted a few days and thus been fully 
consistent with the President's authority under the existing War Powers 
Resolution had he decided to act decisively and take limited military 
action instead devolved into a stinging legislative repudiation of 
executive action. The tragic result was that the Assad regime was 
spared any meaningful consequences for its use of a weapon of mass 
destruction against innocent men, women, and children, and, as with 
Libya, the forces that want to turn America away from the world were 
not checked but empowered.
  Some of us may see the problem in these two instances as a failure of 
Presidential leadership, and I would agree, but I also believe the 
examples of Libya and Syria represent the broader problem we as a 
nation face: What is the proper war power authority of the executive 
and legislative branches when it comes to limited conflicts, which are 
increasingly the kinds of conflicts with which we are faced?
  It is essential for the Congress and the President to work together 
to define a new war powers consultative agreement that reflects the 
nature of conflict in the 21st century and is in line with our 
Constitution. Our Nation does not have 535 commanders in chief. We have 
one--the President--and that role as established by our Constitution

[[Page S442]]

must be respected. Our Nation is poorly served when Members of Congress 
try to micromanage the Commander in Chief in matters of war.
  At the same time, now more than ever, we need to create a broader and 
more durable national consensus on foreign policy and national 
security, especially when it comes to matters of war and armed 
conflict. We need to find ways to make internationalist policies more 
politically sustainable.
  After the September 11 attack, we embarked on an expansive foreign 
policy. Spending on defense and foreign assistance went up, and energy 
shifted to the executive. Now things are changing. Americans want to 
pull back from the world. Our foreign assistance and defense budgets 
are declining. The desire to curb Presidential power across the board 
is growing, and the political momentum is shifting toward the Congress. 
America has gone through this kind of political rebalancing before, and 
much of the time we have gotten it wrong. That is how we got 
isolationism and disarmament after World War I, that is how we got a 
hollow army after Vietnam, and that is how we weakened our national 
security after the Cold War in the misplaced hope of cashing in on a 
peace dividend. We can't afford to repeat these mistakes.
  A new war powers resolution--one that is recognized as both 
constitutional and workable in practice--can be an important 
contribution to this effort. It can more effectively invest in the 
Congress the critical decisions that impact our national security. It 
can help build a more durable consensus in favor of the kinds of 
policies we need to sustain our global leadership and protect our 
Nation. In short, the legislation we are introducing today can restore 
a better balance to the way national security decisionmaking should 
work in a great democracy such as ours.
  Let me say again. Neither the Senator from Virginia nor I believe the 
legislation we are introducing today answers all of the monumental and 
difficult questions surrounding the issue of war powers. We believe 
this is a matter of transcendent importance to our Nation, and we as a 
deliberative body of our government should debate this issue, and we 
look forward to that debate. This legislation should be seen as a way 
of starting that discussion both here in the Congress and across our 
Nation. We owe that to ourselves and our constituents. Most of all, we 
owe that to the brave men and women who serve our Nation in uniform and 
are called to risk their lives in harm's way for the sake of our 
Nation's national defense.

  Before I yield to my tardy colleague from Virginia, I wish to mention 
again another reason why I think this legislation should be the 
beginning of a serious debate which we should bring to some conclusion. 
The fact is that no President of the United States has recognized the 
constitutionality of the War Powers Act. That is a problem in itself. 
That is a perversion, frankly, of the Constitution of the United States 
of America. That is one reason, but the most important reason is that I 
believe we are living in incredibly dangerous times. When we look 
across the Middle East, when we look at Asia and the rise in the 
tensions in that part of the world and we look at the conflicts that 
are becoming regional--and whose fault they are is a subject for 
another debate and discussion, but the fact is that we are in the path 
of some kind of conflict in which--whether the United States of America 
wants to or not--we may have to be involved in some ways.
  We still have vital national security interests in the Middle East. 
It is evolving into a chaotic situation, and one can look from the 
Mediterranean all the way to the Strait of Hormuz, the Gulf of Aqaba, 
and throughout the region. So I believe the likelihood of us being 
involved in some way or another in some conflict is greater than it has 
been since the end of the Cold War, and I believe the American people 
deserve legislation and a clear definition of the responsibilities of 
the Congress of the United States and that of the President of the 
United States.
  Again, I thank my colleague from Virginia, whose idea this is, who 
took a great proposal that was developed at the University of Virginia 
and was kind enough to involve me in this effort. I thank him for it. I 
thank him for his very hard work on it, despite the fact that, as the 
Chair will recognize, he was late for this discussion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. KAINE. Mr. President, I thank my colleague from Arizona for 
pointing out to all in the Chamber my tardiness, and I should not have 
been tardy because I do not like to follow the Senator from Arizona. I 
would rather begin before him. But I want to thank him for his work 
with me, together, on this important issue and amplify on a few of the 
comments he has made.
  Today, together, as cosponsors we are introducing the War Powers 
Consultation Act of 2014, which would repeal the 1973 War Powers 
Resolution and replace it. I could not have a better cosponsor than 
Senator McCain and appreciate all the work he and his staff have done 
over the last months with us.
  I gave a floor speech about this issue in this Chamber in July of 
2013, almost to the day, 40 years after the Senate passed the War 
Powers Resolution of 1973. Many of you remember the context of that 
passage. When it was passed in the summer of 1973, it was in the midst 
of the end of the Vietnam war. President Nixon had expanded the Vietnam 
war into Cambodia and Laos without explicit congressional approval, and 
the Congress reacted very negatively and passed this act to try to 
curtail executive powers in terms of the initiation of military 
hostilities.
  It was a very controversial bill. When it was passed, President Nixon 
vetoed it. Congress overrode the veto at the end of 1973. But as 
Senator McCain indicated, no President has conceded the 
constitutionality of the 1973 act, and most constitutional scholars who 
have written about the question have found at least a few of what they 
believe would be fatal infirmities in that 1973 resolution.
  It was a hyperpartisan time, maybe not unlike some aspects of the 
present, and in trying to find that right balance in this critical 
question of when the Nation goes to war or initiates military action, 
Congress and the President did not reach an accord.
  I came to the Senate with a number of passions and things I hoped to 
do. But I think I came with only one obsession, and this is that 
obsession. Virginia is a State that is most connected to the military 
of any State in the country. Our map is a map of American military 
history--from Yorktown, where the Revolutionary War ended, to 
Appomattox, where the Civil War ended, to the Pentagon, where 9/11 
happened. That is who we are. One in nine Virginians is a veteran. If 
you add our Active Duty, our Guard and Reserve, our military families, 
our DOD civilians, our DOD contractors, you are basically talking about 
one in three Virginians. These issues of war and peace matter so deeply 
to us, as they do all Americans.
  The particular passion I had in coming to this body around war powers 
was because of kind of a disturbing thought, which is, if the President 
and Congress do not work together and find consensus in matters around 
war, we might be asking our men and women to fight and potentially give 
their lives without a clear political consensus and agreement behind 
the mission.
  I do not think there is anything more important that the Senate and 
the Congress can do than to be on board on decisions about whether we 
initiate military action, because if we do not, we are asking young men 
and women to fight and potentially give their lives, with us not having 
done the hard work of creating the political consensus to support them. 
That is why I have worked hard to bring this to the attention of this 
body with Senator McCain.
  The Constitution actually sets up a fairly clear framework. The 
President is the Commander in Chief, not 535 commanders-in-chief, as 
Senator McCain indicated. But Congress is the body that has the power 
both to declare war and then to fund military action. In dividing the 
responsibilities in this way, the Framers were pretty clear. James 
Madison, who worked on the Constitution, especially the Bill of Rights, 
wrote a letter to Thomas Jefferson and said:

       The constitution supposes, what the History of all 
     Governments demonstrates, that the Executive is the branch of 
     power most interested in war, and most prone to it. It

[[Page S443]]

     has accordingly with studied care vested the question of war 
     in the Legislature.

  Despite that original constitutional understanding, our history has 
not matched the notion that Congress would always be the initiator of 
military action. Congress has only declared war five times in the 
history of the United States, while Presidents have initiated military 
action prior to any congressional approval more than 120 times.
  In some of these instances where the President has initiated war, 
Congress has come back and either subsequently ratified Presidential 
action--sometimes by a formal approval or sometimes by informal 
approval such as budgetary allocation--but in other instances, 
including recently, Presidents have acted and committed American 
military forces to military action without any congressional approval. 
The Senator from Arizona mentioned the most recent one. President Obama 
committed military force to NATO, action against Libya in 2011, without 
any congressional approval, and he was formally censured by the House 
of Representatives for doing so.
  The current context that requires a reanalysis of this thorny 
question, after 40 years of the War Powers Resolution, was well stated 
by the Senator from Arizona. Wars are different. They start 
differently. They are not necessarily nation state against nation 
state. They could be limited in time or, as of now, we are still 
pursuing a military force that was authorized on September 18, 2001, 12 
or 13 years later. Wars are of different duration, different scope, 
different geography. Nation states are no longer the only entities that 
are engaged in war.
  These new developments that are challenging--what do we do about 
drones in countries far afield from where battles were originally 
waged--raise the issue of the need to go back into this War Powers 
Resolution and update it for the current times.
  As the Senator from Arizona mentioned, this has been a question that 
Members of Congress have grappled with and thought about, as have 
diplomats and scholars and administration officials and Members of 
Congress for some time.
  In 2007, the Miller Center for the study of the presidency at the 
University of Virginia convened a National War Powers Commission under 
the chairmanships of two esteemable and bipartisan leaders--former 
Secretaries of State Warren Christopher and James Baker. The remaining 
members of the Commission were a complete A list of thinkers in this 
area--Slade Gorton, Abner Mikva, Ed Meese, Lee Hamilton. The 
Commission's historian was no less than Doris Kearns Goodwin, who 
looked at the entire scope of this problem in American history and what 
the role of Congress and the President should be.
  The Commission issued a unanimous report, proposing an act to replace 
the War Powers Act of 1973, briefed Congress and incoming President 
Obama on the particular act in 2007 and 2008, but at that time, the 
time was not yet ripe for consideration of this bill.
  But now that we are 40 years into an unworkable War Powers Resolution 
and now, as the Senator indicated, we have had a string of Presidents--
both Democratic Presidents and Republican Presidents--who have 
maintained that the act is unconstitutional and now that we have had a 
40-year history of Congress often exceeding to the claim of 
unconstitutionality by not following the War Powers Resolution itself, 
we do think it is time to revisit.
  Let me just state two fundamental, substantive issues that this bill 
presents in the War Powers Consultation Act of 2014.
  First, there is a set of definitions. What is war? The bill defines 
significant military action as any action where involvement of U.S. 
troops would be expected to be in combat for at least a week or longer. 
Under those circumstances, the provisions of the act would be 
triggered.
  There are some exceptions in the act. The act would not cover defined 
covert action operations. But once a combat operation was expected to 
last for more than 7 days, the act would be triggered.
  The act basically sets up two important substantive improvements on 
the War Powers Resolution.
  First, a permanent consultation committee is established in Congress, 
with the majority and minority leaders of both Houses and the chairs 
and ranking members of the four key committees in both Houses that deal 
with war issues--Intel, Armed Services, Foreign Relations, and 
Appropriations.
  That permanent consultation committee is a venue for discussion 
between the executive and legislative branches--permanent and 
continuous--over matters in the world that may require the use of 
American military force.
  Because the question comes up often: What did the President do to 
consult with Congress? Is it enough to call a few leaders or call a few 
committee chairs? This act would normalize and regularize what 
consultation with Congress means by establishing a permanent 
consultation committee and requiring ongoing dialogue between the 
Executive and that committee.
  The second requirement of this bill is that once military action is 
commenced that would take more than 7 days, there is a requirement for 
a vote in both Houses of Congress. The consultation committee itself 
would put a resolution on the table in both Houses to approve or 
disapprove of military action. It would be a privileged motion with 
expedited requirements for debate, amendment, and vote, and that would 
ensure that we do not reach a situation where action is being taken at 
the instance of one branch with the other branch not in agreement, 
because to do that would put our men and women who are fighting and in 
harm's way at the risk of sacrificing their lives when we in the 
political leadership have not done the job of reaching a consensus 
behind the mission.
  To conclude, I will acknowledge what the Senator from Arizona said. 
This is a very thorny and difficult question that has created 
challenges and differences of interpretation since the Constitution was 
written in 1787. Despite the fact that the Framers who wrote the 
Constitution actually had a pretty clear idea about how it should 
operate, it has never operated that way.
  Forty years of a failed War Powers Resolution in today's dangerous 
world suggests that it is time now to get back in and to do some 
careful deliberation to update and normalize the appropriate level of 
consultation between a President and the legislature.
  The recent events as cited by the Senator--whatever you think about 
the merits or the equities, whether it is Libya, whether it is Syria, 
whether it is the discussions we are having now with respect to Iran or 
any other of a number of potential spots around the world that could 
lead to conflict--suggest that while decisions about war and initiation 
of military action will never be easy, they get harder if we do not 
have an agreed-upon process for coming to understand each other's 
points of view and then acting in the best interest of the Nation to 
forge a consensus.
  With that, I appreciate the opportunity to stand with my colleague, 
after a number of months of discussion, to introduce this bill, and I 
look forward to the opportunity to carry this dialogue forward with my 
colleagues in this body.
  Thank you very much.
                                 ______