[Congressional Record (Bound Edition), Volume 153 (2007), Part 2]
[Senate]
[Pages 2930-2933]
[From the U.S. Government Publishing Office, www.gpo.gov]




      POWER OF CONGRESS TO IMPOSE CONDITIONS ON APPROPRIATED FUNDS

  Mr. SPECTER. Mr. President, I have sought recognition to discuss the 
powers of Congress under the Constitution to impose conditions on the 
funds appropriated by Congress, conditions on the President of the 
United States in carrying out his responsibilities as Commander in 
Chief. This, of course, is a major subject confronting the United 
States at this time as to what our continuing policy should be in Iraq, 
and there is considerable controversy as to what that policy should be.
  The President has come forward with the proposal to add 21,500 troops 
in Iraq.
  That has been questioned in many quarters in the Congress of the 
United States, both the Senate and the House of Representatives, and by 
the American people. The election results last November were generally 
regarded as a repudiation of our activities in Iraq. The military 
personnel who have come forward to testify in recent days before the 
Armed Services Committee and the witnesses before the Foreign Relations 
Committee have a similar view that major mistakes have been made in 
Iraq. But there is also a generalized consensus that once there, even 
though we found no weapons of mass destruction--had we known Saddam did 
not have weapons of mass destruction, it is doubtful Congress would 
have authorized the use of force--we cannot pull out and leave Iraq 
destabilized. The question is, how to do it.
  The day before yesterday, the Judiciary Committee held a hearing on 
the power of Congress to stop war. The title of the hearing was 
``Exercising Congress's Constitutional Power to End a War.'' At that 
time I raised the question, respectfully, with the President, who has 
stated that he is the decider--he stated that quite a number of times--
I raised the contention that he is not the sole decider, that the 
Congress of the United States has considerable authority on what will 
be done in the conduct of the war. There is no doubt that Congress 
cannot micromanage the war. But it is worth noting historically the 
many occasions where Congress has appropriated funds or taken action 
conditioned on the President following the instructions, following the 
will of the Congress. There was not sufficient time at the hearing the 
day before yesterday to go into detail on these subjects. That is why I 
have decided to come to the floor at the present time and amplify the 
views which I expressed at that time, to review the long line of 
precedents where the Congress has imposed conditions on

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how the President spends appropriated funds for military purposes under 
his Commander in Chief responsibilities and the many situations where 
the Congress has cut off funding.
  When the Congress acceded to the request of President Franklin Delano 
Roosevelt, in 1940, for a peacetime draft, it was on the condition that 
no draftees be stationed outside of the Western Hemisphere. When the 
Congress appropriated funds for reconstruction following the Civil War, 
the Congress limited the Presidential authority saying that the orders 
of the President and the Secretary of War to the army should be given 
only through General Grant and that General Grant should not be 
relieved, removed, or transferred from Washington without the previous 
approval of the Senate. That is going fairly far in the management of a 
military operation and might even be characterized as micromanagement, 
but that is what was done.
  During the administration of Theodore Roosevelt, Congress conditioned 
appropriations on a minimum of 8 percent of the detachments aboard 
naval vessels, being Marines. There, again, a fairly extensive 
incursion into what you would call command responsibilities. Again, it 
might be characterized as micromanagement.
  The United States fought what has been characterized as a Quasi-War 
with France in the latter part of the 18th century. In that war, 
Congress limited both the kind of force the President could use--only 
the Navy, nothing more--and the areas in which he could use it, our 
coastal waters first and then on the high seas. The Congress authorized 
the seizure of French vessels traveling to French ports, and then the 
military seized French vessels coming out of French ports. And that 
case went to the Supreme Court of the United States. And in an 1804 
decision in the case captioned Little v. Barreme, the Supreme Court 
found that Congress had authorized only seizure of vessels traveling to 
French courts, not from French ports. As I review that 200 years later, 
it seems like a very curious limitation, that the power would be to 
seize vessels going to France but not coming from France, but that was 
the specificity of the authorization of the Congress, which was upheld 
in the legal challenge by the Supreme Court of the United States.
  There is unanimity that Congress would not cut off funds which could 
in any way threaten the security or safety of U.S. troops. No doubt 
about that. And there has been very careful articulation that where 
there has been disagreement with administration policy, there has 
always been unanimous support for our troops. But it is worth noting 
the many historical precedents where Congress has cut off funding for 
military operations.
  In Vietnam, Cambodia, and Laos in 1973, at the close of the Vietnam 
war, Congress, with a veto-proof supermajority, cut off all funds, 
including preexisting appropriations, for combat activities in 
Cambodia, Laos, North Vietnam, and South Vietnam after August 15 of 
1973. Then in 1974, Congress set a personnel ceiling of 4,000 Americans 
in Vietnam, 6 months after enactment, and 3,000 Americans within 1 
year, which is a precedent for congressional conditions on a reduction 
in force so that there is advance notice to the administration what the 
congressional direction is, so many troops out by such-and-such a date, 
so many by another date, so there is no doubt that the troops which 
remain will be adequately taken care of in terms of the necessities for 
carrying out their function in a safe way.
  In 1976, Congress, with respect to Angola, provided that there would 
be no assistance of any kind provided to conduct military or 
paramilitary actions in Angola unless expressly authorized by Congress. 
In Nicaragua in 1984, Congress provided that there would be no funds 
available to support military or paramilitary operations in Nicaragua.
  In Somalia in 1993, Congress provided that no funds appropriated may 
be used for the continued presence in Somalia of United States military 
personnel after September 30, 1994. And in Rwanda in 1994, Congress 
provided that no funds are available for U.S. military participation in 
or around Rwanda after October 7, 1994 except to protect the lives of 
U.S. citizens. In 2000, with respect to Colombia, Congress capped at 
500 the number of troops in Colombia. During the Barbary wars, Congress 
enacted legislation authorizing only limited military action against 
the Barbary powers. In the slave trade in 1819, Congress legislated 
that even there, there were specific descriptions as to location and 
mission. In 1878, Congress passed, as part of an appropriations bill, 
the Posse Comitatus Act, which restricted the President's ability to 
use the military for police action of the United States, and they went 
so far as to impose criminal penalties on the troops themselves.
  There are substantial limitations present in congressional action 
with Vietnam in the Gulf of Tonkin resolution. The war powers imposed 
limitations on the President. It should be noted that the President has 
never agreed to the limitations, but the reporting requirements under 
the War Powers Act have been complied with. And both in the first Iraq 
war in 1991 and the so-called second Iraq war of 2002, and in the 
authorization as to Afghanistan in 2001, there are restrictions.
  It continues to be my hope that there will be an accommodation 
between the President and the plans he proposes to undertake and the 
Congress. It has been very healthy to have the kind of analysis and 
debate which has taken place in committee and on the floor of the 
Senate and beyond, in the cloakrooms and in the hallways. That is the 
topic of the day. As we have taken a look at other issues which we are 
facing, there is very little oxygen in Washington for anything but what 
we are going to be doing in Iraq. And those who say it is unhealthy or 
it weakens the United States in the world view or it undercuts the 
morale of the troops in Iraq, I believe the conventional wisdom is, the 
consensus is that notwithstanding those kind of concerns, that that is 
the democratic process. That is the price we pay in a democracy.
  At the hearing the day before yesterday in the Judiciary Committee, I 
cited polls where the military themselves, those participating in Iraq, 
have substantial questions about the wisdom of what is going on, I 
think it was 42 percent, disagree with the conduct of the war in Iraq. 
So it is a healthy sign that it is a part of the price of democracy.
  I was interested to note the testimony of former Secretary of State 
Kissinger yesterday before the Foreign Relations Committee, saying he 
believed a consensus would emerge. And certainly, the United States is 
stronger when we do have unity between the Congress, under Article I, 
and the President, under Article II. I have been pleased to see the 
President consult with the Congress. I attended one meeting a few weeks 
ago, presided over by the President, which was bipartisan, about a 
dozen Senators, both Democrats and Republicans, and a second meeting 
with the National Security Council, Stephen Hadley, 10 Senators, all of 
whom on that occasion were Republicans. And the President has scheduled 
a meeting with Republican Senators tomorrow afternoon, where obviously 
Iraq will be the topic of the day. I have said publicly that the 
proposal that makes a lot of sense to me is the one that has been 
discussed by quite a number of military experts, which would set a time 
schedule, give notice to the Iraqis that at some point the U.S. forces 
would retreat to the perimeters of Baghdad, and that the Iraqis would 
be called upon to meet the two conditions as specified very forcefully 
by the President in the State of the Union speech: that the Iraqis 
would be responsible for ending sectarian violence and responsible for 
securing Baghdad, and that American troops would remain.
  My view is that those are the two conditions the President set down. 
Then the plan which has been considered very broadly would leave the 
American troops in Iraq to guard the infrastructure, protect the 
oilfields, and give training and support to the Iraqis. But even the 
parade of military witnesses who testified before Congress has said 
that the Iraqis are much more likely to take action to protect 
themselves when they don't rely upon the

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United States to do so. It is a matter of human nature. If we are going 
to undertake the burdens for the Iraqis, why should they undertake 
those burdens?
  In considering the deployment of 21,500 additional personnel, I have 
been very skeptical and have said on the record that I could not 
support that because the Iraqis do not appear, from all indications, to 
have either the capacity or the will to carry out their commitments if 
those additional forces are to be committed. But I have said, also, 
that I am going to await the debate on the floor of the Senate. I am 
not sure we deserve the title of the ``world's greatest deliberative 
body,'' but that is the standard we strive to meet. Before I am 
prepared to decide which way to vote, yea or nay, on any of the 
resolutions, I want to be part of that deliberative process, join in 
the discussion, and raise questions.
  It is my hope that before that time comes, there will be further 
discussions, such as the one tomorrow afternoon with the President with 
Republican Senators. There are discussions going on all the time. I 
would like to see us meet the standard that former Secretary Kissinger 
talked about yesterday and come to a consensus. But in the meantime, I 
believe the analysis that is being undertaken is very healthy. If there 
is a price to pay, it is a small price to pay for a democracy.
  I believe in this discussion taking place in the United States we 
show the world the strength of our institutions, not the weakness in 
the United States by whatever disagreements there may be between the 
President and the Congress of the United States.
  Mr. President, I ask unanimous consent that a memorandum of law be 
printed in the Record which details the actions taken in the past by 
the Congress to limit funding and the actions taken by the Congress to 
condition funding and limit executive action.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  I. Utilizing the Power of the Purse

       Congress has on several occasions used the power of the 
     purse in declining to fund certain military forces (thereby 
     preventing, reducing, or ending the U.S. military presence in 
     a given area) or in otherwise attaching strings to military 
     appropriations. See CRS Report, Congressional Restriction on 
     U.S. Military Operations in Vietnam, Cambodia, Laos, Somalia, 
     and Kosovo: Funding and Non-Funding Approaches (2007); CRS 
     Report, Congressional Use of Funding Cutoffs Since 1970 
     Involving U.S. Military Forces and Overseas Deployments 1-3, 
     5-6 (2001) (hereafter ``CRS Report 2001''). Several examples 
     follow:
       Marines on Naval Vessels. During Teddy Roosevelt's 
     administration, ``Congress conditioned appropriations on a 
     minimum of eight percent of detachments aboard naval vessels 
     being marines.'' Charles Tiefer, Can Appropriation Riders 
     Speed Our Exit From Iraq?, 42 Stan. J. Int'l L. 291, 302 
     (2006).
       Vietnam, Cambodia, and Laos. In 1973, at the close of the 
     Vietnam War, Congress--with a veto-proof supermajority--cut 
     off all funds (including preexisting appropriations) for 
     combat activities in Cambodia, Laos, North Vietnam, and South 
     Vietnam after August 15, 1973. Pub. L. 93-50 (Jul. 1, 1973). 
     Then, in 1974, Congress set a ``personnel ceiling of 4,000 
     Americans in Vietnam 6 months after enactment and 3,000 
     Americans within one year.'' CRS Report 2001 at 2; see Pub. 
     L. 93-559, Sec. 38(f)(1) (Dec. 30, 1974).
       Angola. In 1976, Congress prohibited intervention in 
     Angola: ``Notwithstanding any other provision of law, no 
     assistance of any kind may be provided . . . to conduct 
     military or paramilitary operations in Angola unless and 
     until the Congress expressly authorizes such assistance[.]'' 
     Clark Amendment, Pub. L. 94-329, Sec. 404, 90 Stat. 729, 757-
     58 (1976).
       Nicaragua. In 1984, Congress provided that, during FY1985, 
     ``no funds available to . . . any . . . agency or entity of 
     the United States involved in intelligence activities'' may 
     be used to support ``military or paramilitary operations in 
     Nicaragua.'' Pub. L. 98-473, Sec. 8066(a).
       Somalia. In 1993, although Congress ``approved the use of 
     U.S. Armed Forces for certain purposes, including combat 
     forces in a security role to protect United Nations units in 
     Somalia,'' it cut off funding after March 31, 1994, except 
     for limited personnel. CRS Report 2001, at 2-3; see Pub. L. 
     103-139; see also Pub. L. 103-335 (Sept. 30, 1994) (``None of 
     the funds appropriated by this Act may be used for the 
     continuous presence in Somalia of United States military 
     personnel after September 30, 1994.'').
       Rwanda. In 1994, Congress limited an appropriations bill 
     with the proviso that ``no funds provided in this Act are 
     available for United States military participation to 
     continue Operation Support Hope in or around Rwanda after 
     October 7, 1994, expect for any action that is necessary to 
     protect the lives of United States citizens.'' Pub. L. 103-
     335, tit. X.
       Colombia. In 2000, Congress capped at 500 the number of 
     troops in Colombia: ``[N]one of the funds appropriated or 
     otherwise made available by this or any other Act . . . may 
     be available for . . . the assignment of any United States 
     military personnel for temporary or permanent duty in 
     Colombia in connection with support of Plan Colombia if that 
     assignment would cause the number of United States military 
     personnel so assigned in Colombia to exceed 500.'' Pub. L. 
     106-246, 3204(b)(1)(A).
       These examples represent congressional action to ``re-
     deploy'' or to prevent troops from being dispatched in the 
     first place.

      II. Non-Spending Methods of Limiting or Defining Involvement

       On other occasions, Congress has utilized non-spending 
     means to limit and define U.S. military action--e.g., by 
     authorizing military involvement only for specified purposes 
     or places, by rescinding a prior authorization, or by 
     prospectively curtailing authorization.
       Quasi-War With France. At the end of the 18th Century, 
     Congress passed a number of statutes authorizing limited 
     military engagement with France in the so-called ``Quasi 
     War.'' See Louis Fisher, Presidential War Power 24 (2d ed. 
     2004). In 1798, for example, Congress authorized the 
     President ``to instruct and direct the commanders of the 
     armed vessels belonging to the United States'' to seize 
     French vessels that were disrupting United States commerce. 1 
     Stat. 561 (May 28, 1798). In particular, ``in the war with 
     France, Congress limited both the kind of force the President 
     could use (the navy only) and the areas where he could use it 
     (our coastal waters, at first, and then the high seas).'' The 
     Constitution Project, Deciding to Use Force Abroad: War 
     Powers in a System of Checks and Balances 15 (2005). Indeed, 
     in Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804), the 
     Supreme Court found that Congress had only authorized seizure 
     of vessels traveling to French ports, not from French ports.
       Barbary Wars. During the Barbary Wars, Congress enacted 
     several measures authorizing limited military action against 
     the Barbary powers. See, e.g., 3 Stat. 230 (1815) (U.S. 
     vessels authorized to seize ``vessels, goods and effects of 
     or belonging to the Dey of Algiers''); 2 Stat. 291 (1804) 
     (expressing support for ``warlike operations against the 
     regency of Tripoli, or any other of the Barbary powers''); 
     see also Fisher, supra at 35-36 & n.92.
       Slave Trade. In 1819, Congress authorized the President to 
     use the Navy to intercept slave ships along the coasts of the 
     United States and Africa. 3 Stat. 532. In this case, Congress 
     provided a relatively specific description of location and 
     mission.
       Reconstruction. According to one scholar, ``by the use of . 
     . . riders on military appropriations, congressional 
     influence predominated in Reconstruction; occupation armies 
     implementing Reconstruction policies in the Southern states 
     got their directions from such riders.'' Tiefer, supra at 
     302. For example, in 1867, Congress attached a rider on 
     military appropriations providing that the ``orders of the 
     president and secretary of war to the army should only be 
     given through the general of the army (Gen. Grant); [and] 
     that the latter should not be relieved, removed or 
     transferred from Washington without the previous approval of 
     the senate.'' Alexander Johnston, Riders (in U.S. History), 
     in III Cyclopedia of Political Science, Political Economy, 
     and of the Political History of the United States By the Best 
     American and European Authors, 147.7 (John J. Lalor ed., 
     1899), available at http://oll.libertyfund.org/ToC/0216-
03.php.
       In 1878, Congress passed, as part of an appropriations 
     bill, the Posse Comitatus Act, ch. 263, Sec. 15, 20 Stat 145, 
     152 (codified at 18 U.S.C. Sec. 1385), which restricted the 
     President's ability to use the military for police actions in 
     the United States by imposing criminal penalties on the 
     troops themselves. (It is also in part a spending 
     restriction, providing that ``no money appropriated by this 
     act shall be used to pay any of the expenses incurred in the 
     employment of any troops in violation of this section.'' Id.) 
     The PCA was largely aimed at preventing the federal military 
     from overseeing elections in the former Confederacy.
       FDR's Peacetime Draft. In 1940, Congress assented to FDR's 
     desire for a peacetime draft, but only on the condition that 
     no draftees be stationed outside the Western hemisphere. 
     Selective Training and Service Act, Pub. L. 76-783, ch. 720, 
     Sec. 3(e); see Tiefer, supra at 303.
       Vietnam. In 1964, with the Tonkin Gulf Resolution, Congress 
     authorized the President ``to take all necessary steps, 
     including the use of armed force, to assist any member or 
     protocol state of the Southeast Asia Collective Defense 
     Treaty requesting assistance in defense of its freedom.'' 
     Pub. L. 88-408, Sec. 2, 78 Stat. 384, 384. However, in 1971, 
     Congress repealed the Tonkin Gulf Resolution. Pub. L. 91-672, 
     Sec. 12, 84 Stat. 2055 (Jan. 12, 1971). Later

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     that year Congress called for a ``prompt and orderly 
     withdrawal'' from Indochina at the ``earliest practicable 
     date.'' Pub. L. 92-129, Sec. 401 (Sept. 28, 1971).
       War Powers Resolution. In 1973, in response to the Vietnam 
     War and over President Nixon's veto, Congress passed the War 
     Powers Resolution (WPR), Pub. L. 93-148, 87 Stat. 555 (1973), 
     50 U.S.C. Sec. 1541, et seq. The WPR requires the President 
     to consult with Congress before sending troops into 
     hostilities (and within 48 hours after commencing 
     hostilities, entering another nation equipped for combat, or 
     increasing substantially the number of troops in a foreign 
     nation). Also the WPR requires the President to pull out 
     after 60 days--absent a congressional authorization of 
     hostilities, congressional extension, or inability of 
     Congress to meet due to attack. Further, the WPR ``permits 
     Congress to terminate an unauthorized presidential use of 
     military force at any time by concurrent resolution.'' John 
     C. Yoo, The Continuation of Politics By Other Means: The 
     Original Understanding of War Powers, 84 Cal. L. Rev. 167, 
     181 (1996).
       First Iraq War. In 1991, Congress gave the President 
     authority to ``use United States Armed Forces pursuant to 
     United Nations Security Council Resolution 678 (1990) in 
     order to achieve implementation of Security Counsel 
     Resolutions [regarding the Iraqi occupation of Kuwait],'' but 
     must first attempt diplomatic measures. Authorization for Use 
     of Military Force Against Iraq Resolution, Pub. L. 102-1, 
     Sec. 2(a), (b) (1991).
       Afghanistan. In 2001, Congress provided by joint resolution 
     that ``the President is authorized to use all necessary and 
     appropriate force against those nations, organizations, or 
     persons he determines planned, authorized, committed, or 
     aided the terrorist attacks that occurred on September 11, 
     2001, or harbored such organizations or persons, in order to 
     prevent any future acts of international terrorism against 
     the United States by such nations, organizations or 
     persons.'' Authorization for Use of Military Force, Pub. L. 
     107-40, Sec. 2(a), 115 Stat. 224 (Sept. 18, 2001). Although 
     this example is far more open-ended than the others, there 
     are still restrictions imposed on the use of force.
       Second Iraq War. In 2002, Congress authorized the President 
     to ``use the Armed Forces of the United States as he 
     determines to be necessary and appropriate in order to . . . 
     (1) defend the national security of the United States against 
     the continuing threat posed by Iraq; and (2) enforce all 
     relevant United Nations Security Council resolutions 
     regarding Iraq.'' Authorization for Use of Military Force 
     Against Iraq, Pub. L. 107-243, Sec. 3(a), 116 Stat. 1498 
     (Oct. 16, 2002). The President was, however, required to 
     certify that diplomatic means are insufficient and that the 
     use of force will not impede the war on terrorism. Id. 
     Sec. 3(b).

  Mr. SPECTER. Mr. President, I yield the floor.

                          ____________________