[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Pages 9434-9436]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           DECLARATION OF WAR

  Mr. DURBIN. Mr. President, as has the Presiding Officer, I have 
served both in the House of Representatives and in the U.S. Senate, and 
during the course of my career, I have been called on to make many 
votes. Most of them fade into obscurity after they are cast and are 
never recalled, but there are a few we will remember for our lifetimes.
  I would say the highest level in that category are the times when we 
are called upon as Members of Congress to consider a declaration of 
war. Many of us have lost sleep over those decisions. We have thought 
about those votes long and hard. No matter how just the war may be or 
how important it may be, we cannot help but reflect on the fact that at 
the end of the day, people will die as a result of our decisions if we 
go forward in terms of a declaration of war. I have lost sleep over 
those decisions.
  I have tried during the course of making those decisions to be guided 
by several principles.
  First, as Members of the Congress, both in the House and the Senate, 
we swear to uphold and defend the Constitution. I feel as though that 
Constitution is my starting point for my responsibility and my rights 
as a Member of the U.S. Senate when it comes to this issue.
  The Constitution is very clear in article I, section 8, clause 11, 
that only the Congress can declare war. The decision was made by our 
Founding Fathers that the people of the United States literally would 
have a voice in this decision. It wouldn't be a decision made only by 
the Chief Executive because ultimately the people and their families 
and their children would pay the price of a war in human terms--the 
loss of life--and, of course, in the cost of war borne by our Nation.
  I am also guided by my responsibility to the people who were kind 
enough to give me this opportunity to serve. I think about my State of 
Illinois and the families, the mothers, fathers, and children all 
across that State who could be affected by a decision if our Nation 
goes to war.
  I also like to think about whether the war is absolutely necessary in 
terms of the defense of the United States of America.
  Some cases are easier calls. When we were attacked on 9/11, many of 
us knew that 3,000 innocent Americans had died at the hands of 
terrorists. I didn't hesitate to vote for a declaration of war against 
those forces in Afghanistan responsible for that attack on the United 
States.
  We went through a parallel debate at the same time about the invasion 
of Iraq. I did not believe the previous President made a compelling 
case for the invasion of Iraq. If my colleagues will recall, at that 
time the debate was about weapons of mass destruction that could 
threaten the Middle East or even the United States. I voted against 
that declaration of war on Iraq. Twenty-three of us did in the Senate--
22 Democrats and 1 Republican. We came to learn that there were no 
weapons of mass destruction. Many of the threats which gave rise to the 
President's request turned out to not be factual at all. Well, we are 
finally--finally--more than 10 years later, starting to bring those 
troops home from Iraq, and we have paid a heavy price in Americans 
killed and maimed and in the cost to our Nation.
  Each time we have been challenged as a Senate and as a House to 
consider a declaration of war, I have thought long and hard about it: 
my constitutional responsibilities, my responsibilities to the people 
of my State, and whether such a war was absolutely necessary.
  Now we are engaged in three wars--wars in Iraq, Afghanistan, and in 
Libya. Shortly, we will be considering the authority of the President 
of the United States to continue our involvement in Libya. I am going 
to apply the same constitutional standard and standards of judgment to 
that decision that I have to every other declaration of war or every 
other approval of engagement in hostilities by the United States as I 
have in the past.

[[Page 9435]]

  This President is my friend. He was my colleague in the Senate. We 
are of the same political party. But when it comes to an issue of this 
gravity, we have to move beyond any personal considerations when it 
comes to the President and think about our Nation, our Constitution, 
and our responsibility to the people we represent.
  We have learned during the course of our history that Presidents 
don't always come to Congress when they initiate a war. President 
Franklin Roosevelt did. He came to Congress shortly after--in fact, the 
day after--the attack on Pearl Harbor in December of 1941 and asked for 
the authority and permission to go forward with a war that would be 
waged against those who would attack us. Then came the Korean conflict, 
which was not characterized in official terms as war because President 
Truman didn't come to Congress asking for that authority.
  I had two brothers, incidentally, who served in the U.S. Navy during 
the Korean conflict. They always used to jokingly say it was a police 
action with real bullets, and I know, because many innocent Americans 
died in the course of that Korean conflict. Yet there was no formal 
declaration of war.
  Vietnam was a war I paid much closer attention to because it came at 
a time when I was in college and law school, and my friends were being 
asked to serve. Again, there was no official declaration of war.
  After Vietnam and after the tremendous loss of life and all the 
controversy associated with it, there was a debate in the Halls of 
Congress about whether we needed to be more specific in terms of the 
authority of a President to go to war. So Congress enacted the War 
Powers Resolution in the 1970s, which spelled out in specific terms the 
responsibility of the President when he would ask this Nation to go to 
war.
  That bill, having passed both the House and the Senate, was sent to 
President Nixon, who vetoed it. He viewed it, as most Presidents have 
then and since, as an intrusion on his authority as Commander in Chief. 
But the Congress decided to pass the War Powers Resolution over the 
veto of President Nixon, reaffirming the constitutional authority and 
right of Congress when it came to a declaration of war.
  Now we find ourselves in a situation where Congress has voted on 
going forward with the war in Iraq--and, as I mentioned earlier, I was 
one of those who voted against it--going forward with the war in 
Afghanistan--I was one who voted for it; all Senators did, I might add, 
from both political parties--and now a question of Libya.
  Several months ago, the situation in Libya became so grave that the 
President of the United States met with our leaders in the military and 
leaders of other nations to ask what should be done. Muammar Qadhafi, 
the rogue leader of Libya, was literally attacking and killing his own 
people in the streets of his country, and there was a widespread public 
reaction against it from the Arab League, of which Libya was a member, 
as well as the European Union, the United Nations, and others.
  President Obama made the decision then to consult with Members of 
Congress about what we should do. I was fortunate enough, being a 
member of leadership, to be part of the conference call when the 
President was on the line with leaders--Democrats and Republicans--in 
the House and Senate and spelled out what he believed was the grave 
threat to the innocent people of Libya.
  At that point, this was a question as to whether Benghazi was going 
to fall and whether Muammar Qadhafi would consolidate power and take 
retribution against those who had been in opposition to his government. 
He said he was going to take to the streets with his military and kill 
them like rats, and we took him at his word, and the President felt the 
civilized nations of the world had to act.
  Acting in consultation and in concert with the Arab League and the 
United Nations and NATO, the President spelled out a course of action. 
He told us in these early consultations that the United States 
involvement would be very limited, perhaps more intense at the outset 
than as any conflict progressed, and that we would not commit land 
troops to Libya, and that basically the leadership of this effort would 
be under the auspices of NATO, and we would be in a supportive role--a 
role which would diminish over time. That was the President's promise, 
and that was what was executed.
  Now, more than 2 months later, the question has arisen: Well, what is 
this President's responsibility under the Constitution? What is the 
Congress's responsibility under the Constitution? Are we engaged in a 
war?
  I might say that I sat down before coming to the floor and carefully 
reread the War Powers Resolution. Although we characterize it in many 
different ways, the language of this War Powers Resolution is, in some 
areas, difficult to apply to every situation. It makes reference 
throughout ``to the introduction of United States Armed Forces into 
hostilities, or into situations where imminent involvement in 
hostilities is clearly indicated by the circumstances, and to the 
continued use of such forces in hostilities or in such situations.''
  We translate that in our debates, and I have been party to many over 
the course of the time I have served in the House and the Senate, as to 
whether we are talking about a defensive military action or an 
offensive military action.
  I do not think there is any question--not in my mind--that a 
President as Commander in Chief has the authority, without seeking 
congressional approval, to defend the people of the United States and 
its territory. Certainly, we would not expect the President to wait for 
Congress to convene, debate, and vote if the United States and its 
citizens are under attack.
  But what of those other circumstances where we are initiating 
military action that is not strictly in defense of the United States? 
Are those so-called offensive military actions hostilities? Do they 
require a President to come forward and to ask of Congress authority to 
go forward with the U.S. involvement in those military hostilities? 
That is where we find ourselves today.
  More than 60 days after the initiation of our involvement in Libya, 
the debate is still on in the Senate as to whether we need to authorize 
the President to continue our efforts in Libya and whether that 
authorization should be under the War Powers Resolution.
  I think it should. That is why I have come to the floor today. I 
joined with Senator Ben Cardin in introducing a proposal, a Senate 
joint resolution, which we have circulated, which would give the 
President the authority, if passed, to continue the hostilities in 
Libya under the War Powers Resolution, expressly stating that it would 
not involve land forces, ground troops, and that it would have a time 
certain to end--in our case, by the end of this calendar year--subject 
to another decision by Congress as to whether it should go forward.
  I believe that is still the right course of action. I am hopeful that 
before the end of the day there will be action taken by some of my 
colleagues here in Congress to come forward with a bipartisan 
resolution which parallels what I just described.
  I might add there is some controversy, and it is worthy of at least 
debate, as to our current situation in Libya and whether it fits 
squarely within the War Powers Resolution.
  Bob Bauer, who is general counsel to the President of the United 
States, argues it does not. Yesterday, in a conference call, Mr. Bauer 
was asked specifically whether he thought the War Powers Resolution was 
applicable to the current situation in Libya. Here is what he said. 
When he was asked: Could you explain? he said:

       Certainly. As I mentioned, as my colleague was going 
     through the nature of the mission and how it changed, we're 
     now in a position where we're operating in a support role. 
     We're not engaged in any of the activities that typically 
     over the years in war powers analysis is considered to 
     constitute hostilities within the meaning of the statute. 
     We're not engaged in sustained fighting. There's been no 
     exchange of fire with hostile forces. We don't have troops on 
     the ground. We don't risk casualties to those troops. None of 
     the factors, frankly, speaking more

[[Page 9436]]

     broadly, has risked the sort of escalation that Congress was 
     concerned would impinge on its war-making power.
       So within the precedents of a war powers analysis, all of 
     which typically are very fact-dependent, we are confident 
     that we're operating consistent with the resolution. That 
     doesn't mean that we don't want the full, ongoing 
     consultation with Congress or authorization as we move 
     forward, but that doesn't go to our legal position under the 
     statute itself, and we're confident of that.

  I respect Mr. Bauer, but I respectfully disagree with him. I believe 
that what we are engaged in in Libya is a matter that should come under 
the War Powers Resolution. I believe that we should as a Congress 
consider it under the War Powers Resolution.
  I think that is the right course of action. It will give the 
President clear authority, and it will also establish the clear 
authority of Congress in this particular situation.
  Let me add quickly, I think the President was right in what he did 
initially. I believe the use of American military technology--which was 
primarily our initial investment--was certainly warranted. Working with 
NATO, we created an atmosphere where the NATO forces could not be in 
harm's way, would be safe in their early efforts to stop Muammar 
Qadhafi in his efforts to kill the civilians in his country.
  I also believe the President was right from a foreign policy 
viewpoint by not doing this unilaterally but working with the Arab 
League, the European Union, and the United Nations.
  The fact that we have for the first time in history NATO forces 
working in concert with the Arab League is, I think, a very positive 
thing, and I salute the President for doing it.
  I think his goal and motives were good in this effort, and I would 
vote, if asked, to continue this effort under the War Powers Act 
affirmatively based on all the briefings I have received.
  Having said that, I believe we should pursue the course that Senator 
Cardin and I suggested in our resolution, that we should, in fact, deal 
with this matter under the War Powers Resolution. We should debate and 
take action on it here in the Senate.
  I am hopeful that soon--perhaps before the end of the day--there will 
be some effort under way in a bipartisan fashion to do just that.
  At the end of the day, we will be asked by future generations if we 
kept true to our oath under the Constitution, which requires us to face 
difficult debates and decisions, and there are none more difficult than 
this.
  We are also going to be asked by the people we represent in terms of 
the cost in human life and the cost to American taxpayers whether we 
engaged in the debate and determined it was the appropriate thing to 
do.
  I have, like so many Members of the Senate and Congress, had the sad 
duty to attend the funerals of those who have fallen in combat in 
service to our country. It is sad to face their families and realize 
they have paid the ultimate sacrifice to our Nation. I think that 
requires us, even in circumstances where the facts are debatable, to 
err on the side of exercising our constitutional authority.
  I hope before the end of the day this bipartisan resolution will come 
to the floor--and certainly before the end of the week--and that we 
debate it and act on it before the end of this work period.
  Again, let me make it clear, I think the President is right in what 
he is doing. But I think we have a responsibility that goes beyond Mr. 
Bauer's conclusion--a responsibility to decide that this offensive use 
of military force, even for a good purpose, a good humanitarian 
purpose, is one that requires the authorization of the American people 
through their Members of Congress.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Franken). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________