[Congressional Record Volume 166, Number 36 (Monday, February 24, 2020)]
[Senate]
[Pages S1113-S1115]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         WAR POWERS RESOLUTION

  Mr. MENENDEZ. Mr. President, I rise to elaborate on my statement of 
February 13 in support of S. J. Res. 68. This resolution puts the 
Senate on record with regard to war powers and Iran in the wake of the 
U.S. strike against Islamic Revolutionary Guard Corps Commander Qasem 
Soleimani on January 2, 2020.
  The resolution, which directs the President to terminate the use of 
U.S. Armed Forces for hostilities against Iran, passed the Senate with 
a strong bipartisan majority. This bipartisan consensus is a testament 
to Senator Kaine's leadership, and I commend him for that.

[[Page S1114]]

  It is also a reflection of the Senate's deep concern about the risk 
of a broader military conflict between the United States and Iran.
  There is no dispute that Soleimani was an enemy of the United States, 
but this extraordinary killing of a high-ranking foreign military 
official nearly brought us to the brink of war. The strike would be 
justified if it had been necessary to defend against an imminent attack 
against the United States, but the administration has failed to provide 
any persuasive evidence of such a threat.
  Instead, the administration appears to be laying the foundation for 
further military action against Iran, without coming to Congress. Let's 
be clear: It is not just that there is no existing authorization. To 
the extent that the administration continues to confront Iran 
militarily, it is doing so in direct opposition to Congress--both the 
House and Senate have now passed bipartisan resolutions directing the 
President to terminate hostilities with Iran--and without the support 
of the American people.
  With that in mind, I would like to address some of the features of 
S.J. Res. 68, as well as the administration's legal rationale for the 
Soleimani strike and why that rationale is so problematic.
  Before doing so, I want to take a step back and make sure that 
everyone understands the real world impact. Today, over 100 service men 
and women are suffering from traumatic brain injuries incurred during 
an Iranian retaliatory attack over Soleimani. My heart goes out to them 
and their families.
  Thankfully there were no American casualties, but we will not be so 
lucky if President Trump stumbles into a broader conflict with Iran.
  So when I raise the alarm over this administration's actions, it is 
not academic. It is about our sons and daughters, husbands and wives, 
and brothers and sisters serving in harm's way. It is about honoring 
their service with more than just words. It is about ensuring that they 
are not needlessly put in danger by an arrogant and lawless 
administration that refuses to recognize any limitation on its ability 
to drag our country into war.
  S.J. Res. 68 has a number of important features. I will highlight 
three of them briefly.
  First, this resolution established a new precedent in the Senate.
  The War Powers Resolution, as amended, provides for privileged 
consideration of joint resolutions that direct the President, in broad 
terms, to stop the use of U.S. forces in specified hostilities. The 
only such privileged resolutions in the Senate prior to S.J. Res. 68 
mandated that the President ``remove'' U.S. forces from hostilities. 
The operative language of S.J. Res. 68 uses a variation of that 
language. Instead of ``remove,'' it directs the President to 
``terminate'' the use of U.S. forces for hostilities.
  In a failed bid to prevent privileged consideration of S.J. Res. 68, 
the Republican majority asserted, in effect, that ``remove from 
hostilities'' was a term of art and that privilege was available only 
for resolutions that used that specific phrase. That rigid approach is 
inconsistent with the overarching purpose of the War Powers 
Resolution--for Congress to reconfirm and reassert its constitutional 
powers over the use of force--and contrary to the statutory framework 
and legislative history of the War Powers Resolution. The statute does 
not prescribe specific language, and the legislative record is full of 
examples of the interchangeable use of ``remove,'' ``terminate,'' and 
multiple other synonymous terms.
  Ultimately, the Senate moved forward with consideration of S.J. Res 
68 on a privileged and expedited basis.
  This precedent is noteworthy for two reasons: First, it clarifies 
that there are no magic words required for privilege. This means that a 
resolution that requires the President to stop the use of U.S. Armed 
Forces in hostilities will not be deprived of expedited consideration 
in the Senate over semantics. Second, it provides a degree of 
flexibility for Senators who seek to stop such hostilities. For 
example, ``terminate'' or other synonyms may be more appropriate than 
``remove'' for certain situations, like cyber operations, where 
implying a need for or requiring the physical removal of forces may not 
be practicable or desirable.
  Second, S. J. Res. 68 includes a rule of construction stating that it 
does not prevent the United States from defending itself against 
imminent attack. This is a critical feature. While we cannot abide by 
this President or any President usurping Congress' role and 
responsibility to authorize the use of force, the United States always 
has the right to defend itself against an ongoing or imminent attack.
  In tandem with this rule of construction, the Senate adopted an 
amendment offered by Senator Risch that added the following finding: 
``The President has a constitutional responsibility to take actions to 
defend the United States, its territories, possessions, citizens, 
service members, and diplomats from attack.''
  The responsibility to ``take actions'' in defense of the United 
States and our people and interests is a core function of the 
Presidency. This responsibility includes the full range of resources 
available to the executive branch--diplomacy, law enforcement, 
intelligence, military force, and beyond. Each type of action is 
subject to different legal and constitutional considerations, and the 
President never has a blank check. He or she is obligated to act 
consistently with the law and the Constitution at all times, even when 
in defense of the country. When using military force in self-defense, 
this means his or her actions must be in response to an attack or 
imminent attack unless Congress has explicitly authorized some other 
action. Against this backdrop, the Risch amendment is consistent with 
both the rule of construction in S.J. Res. 68 and the constitutional 
balance between Congress and the executive branch over the use of 
force.
  For these reasons, I voted in favor of the Risch amendment and am not 
surprised it passed overwhelmingly.
  While Senate passage of S. J. Res. 68 is a major step against an 
unnecessary and unauthorized war with Iran, I am concerned that the 
administration may not heed the message. At minimum, its legal 
rationale for the Soleimani strike suggests that it is attempting to 
lay the foundation for further military action against Iran.
  The administration has publicly asserted three legal bases for the 
Soleimani strike, but none of them add up.
  First, let me address the 2002 Iraq authorization to use military 
force, AUMF, a law that this administration has distorted beyond 
recognition.
  The administration has stated that the 2002 AUMF is a valid legal 
basis for the Soleimani strike because Soleimani was a threat 
``emanating from Iraq.'' I am sorry to say that does not pass the laugh 
test.
  Congress passed the 2002 AUMF for a single purpose--to address the 
threat posed by Saddam Hussein's alleged weapons of mass destruction. 
Nothing about the law, its text, or its legislative history suggests 
that it ever authorize or was intended to authorize the use of force 
against Iran.
  I know because I was there. I debated the AUMF, and I voted against 
it. But even the most staunch supporters would never have claimed that 
the authorization to use force against Saddam Hussein in 2002 extended 
to the killing of a senior Iranian commander 18 years later.
  The administration also cites article II of the Constitution as a 
legal basis for the Soleimani strike. Article II would be available to 
the extent the strike was necessary to defend against an imminent 
attack; however, as I noted earlier, nearly 2 months have passed, and 
Congress and the American people are still waiting for proof--proof 
that such an attack was, in fact, imminent and, if so, that killing 
Soleimani was required to prevent the attack.
  Perhaps not surprisingly, given the lack of supporting evidence, the 
administration does not limit its article II claim to self-defense. 
Like other recent administrations, it asserts that the Constitution 
empowers the President to use military force ``to protect important 
national interests.''
  But what kind of legal standard is this?
  At best, ``protecting important national interests'' sets an 
incredibly low bar for the most consequential of actions. At worst, it 
is a self-serving power grab that the President can use to justify 
military action anywhere in the world without congressional 
authorization.

[[Page S1115]]

  We should not be surprised--this ``standard'' was concocted by and 
for the executive branch to maximize the President's ability to use 
military force without congressional authorization. It does not reflect 
a neutral analysis of the separation of power, it has not been tested 
in the courts, and it has not been approved by Congress.
  Just a few weeks ago, in this very Chamber, we listened as the 
President's defense lawyers argued during the impeachment trial that 
steps taken in support of the President's reelection are inherently in 
the national interest. That was a shocking and frightening claim in the 
impeachment context. But now consider it in the context of sending the 
men and women of our Armed Forces into harm's way.
  Surely the Constitution does not authorize the President to use force 
in support of his or her reelection. Surely, it does not. Then again, 
this administration has been unable or unwilling to identify any limits 
on its purported article II authority, any instance in which it would 
concede that it needs Congress to authorize the use of force.
  Finally, I refer you to Secretary Pompeo's January 17, 2020, 
appearance on the Hugh Hewitt radio show. While on air, Secretary 
Pompeo insinuated that the designation of the IRGC as a foreign 
terrorist organization, FTO, served as a legal basis to target IRGC 
members, presumably including Soleimani.
  FTO designations are administrative actions taken pursuant to the 
Immigration and Nationality Act; they are clearly not congressional 
authorizations for the use of military force.
  Now, I was hoping that Secretary Pompeo himself or a State Department 
official on his behalf would issue a simple clarification and 
acknowledge what we all know: An FTO designation has no bearing on 
whether this or any administration can use military force, period.
  I have written the Secretary on this question, and I have posed the 
same question to the State Department's Acting Legal Adviser. We 
continue to await a response, and I must say that the delay does not 
leave me with much confidence that we will receive the right answer.
  As so clearly demonstrated by the flimsy legal rationale advanced in 
relation to the Soleimani strike, we cannot rely on this administration 
or any administration to guard Congress' prerogatives over war powers.
  I am hopeful that the Soleimani strike and the Senate debate over 
S.J. Res. 68 will serve as a wake-up call. I am hopeful that all of our 
colleagues in this Chamber and in the House will work to reassert 
Congress' role over the use of force.
  We owe it to the Constitution, we owe it to the American people, and 
we owe it to the men and women who fight and die on our behalf.

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