[Congressional Record (Bound Edition), Volume 148 (2002), Part 14]
[Senate]
[Pages 19203-19205]
[From the U.S. 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 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.

[[Page 19204]]

  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;
       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

[[Page 19205]]

     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.

                          ____________________