[Congressional Record (Bound Edition), Volume 148 (2002), Part 17]
[Senate]
[Pages 23325-23329]
[From the U.S. 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

[[Page 23326]]

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:
                                          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.

[[Page 23327]]

       (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.
       (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,

[[Page 23328]]

     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 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,

[[Page 23329]]

     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 
     representative branches would have given proper 
     constitutional consent, and as a nation, we would all be in 
     it together, to do what it takes 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 latter. And should Congress so decide, 
     and make this case convincingly to the citizenry, then surely 
     the nation would be grateful 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.

                          ____________________