[Congressional Record (Bound Edition), Volume 160 (2014), Part 8]
[Senate]
[Pages 10852-10854]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  IRAQ

  Mr. KAINE. Madam President, I rise to discuss the current crisis in 
Iraq. In particular, I wish to discuss an important question: Would 
Congress need to approve any U.S. military combat action in Iraq?
  Last week, the President summoned congressional leadership to the 
White House to discuss the deteriorating situation in Iraq and a 
potential U.S. response. Press reports of the meeting had Members 
quoting the President as saying he had all necessary authority for 
military action already, and some accounts had the congressional 
leaders also agreeing that the President had necessary authority.
  I do not believe this President--or any President--has the ability 
without congressional approval to initiate military action in Iraq or 
anywhere else, except in the case of an emergency posing an imminent 
threat to the United States or its citizens.
  I also assert that the current crisis in Iraq, while serious and 
posing the possibility of a long-term threat to the United States, is 
not the kind of conflict where the President can or should act 
unilaterally. If the United States is to contemplate military action in 
Iraq, the President must seek congressional authorization.
  Let me point out that the White House has been in significant 
consultation with congressional leadership and Members in the past 
weeks, and that consultation is important and it is appreciated. But it 
is not the same thing as seeking congressional authority. That has yet 
to be done, and it must be done if the United States intends to engage 
in any combat activity in Iraq.

[[Page 10853]]

  A word about the law. The Framers of the Constitution had a clear 
understanding regarding decisions about war. Congress must act to 
initiate war. A war, once initiated, is then managed by the President 
as Commander in Chief.
  The principal drafter of the Constitution, Virginian James Madison, 
often explained why the allocation of power was drawn in this way.

       The constitution supposes, what the History of all 
     Governments demonstrates, that the Executive is the branch of 
     power most interested in war, and most prone to it. It has 
     accordingly with studied care vested the question of war to 
     the Legislature.

  The Framers did understand that a President must be able to act in an 
emergency to protect the United States or its citizens even prior to 
congressional approval. That is especially the case in the day when 
Members of Congress, upon the recess, would ride horses back to Vermont 
or wherever they lived. The President had to be able to act if the 
United States or an embassy or a naval ship was under attack. But even 
in those circumstances, the Framers understood that in an emergency a 
President could act but would then still need to seek formal 
congressional approval of any military action that had been taken.
  It is important to understand that this basic allocation of power is 
not just about constitutional phrases. It is about underlying values.
  First, the requirement for congressional approval ensures that 
American troops will not be sent into combat without a clear political 
consensus that the mission is worthwhile. It would be the height of 
public immorality to order servicemembers to risk their lives when the 
Nation's political leadership has not done the work to reach a 
consensus about the value of a mission.
  Secondly, the requirement of congressional approval to initiate war 
also guarantees that there will be a public process of debate and 
voting by which the citizenry can also become educated about what is at 
stake and whether America should take the grave step of authorizing war 
to protect the national interest. Congress, as the decisionmaker, as 
the initiator, as the declarer of war, supports these important 
underlying values.
  Applying that law to Iraq, the current situation is very troubling. 
Congress authorized war in Iraq in 2002. In 2008, President Bush signed 
an agreement with Iraqi Prime Minister Maliki to cease combat 
operations and withdraw U.S. troops by the end of 2011. After President 
Obama became President, he worked with Iraq and was willing to have 
U.S. troops stay past 2011 to provide continued assistance to the Iraqi 
security forces if they desired it, but the Iraq Government would not 
provide the immunities and other security assurances that were 
necessary for the United States to stay. They basically communicated 
that they did not want us to stay. So the U.S. military ceased combat 
operations and departed in 2011. By all accounts the U.S. combat role 
stopped at that moment.
  In the years since 2011, Prime Minister Maliki has governed Iraq in a 
way that has exacerbated tensions between the country's ethnic groups. 
In particular, instead of building an Iraq for all Iraqis, the Maliki 
government has preferred the Shia population with the support of Iran 
and marginalized--even oppressing--the Sunni and Kurdish populations, 
and these regrettable actions have weakened the support for the 
government and have created fertile ground for Sunni extremism.
  The fanatic Sunni organization ISIL has grown in its campaign to 
topple the current Syrian Government and now seeks to do the same in 
Iraq as part of its plan to establish a larger single Sunni caliphate 
from Lebanon to Iraq. ISIL is a well-armed and well-funded organization 
of jihadists. While their primary motive is the toppling of governments 
in the region, there is little doubt that they will seek in the future 
to strike western targets in Europe and in the United States. This 
explains the current concern and the current debate in this body about 
how to counter the threat ISIL poses. While ISIL terrorists pose a 
concern, it is important to point out that there is nothing in current 
law that would allow the President to take military action against them 
without congressional approval.
  Let's look at current law.
  Congress passed an authorization for the use of military force 
immediately after the 9/11 attacks to allow action against those who 
perpetrated the attacks on that day. ISIL had no connection with the 9/
11 attacks. ISIL did not form until 2003. Both the Bush and Obama 
administrations have broadly interpreted that AUMF to allow attacks 
against Al Qaeda or associated forces, but ISIL is not Al Qaeda, nor is 
it an associated force. While it forged a temporary alliance with Al 
Qaeda in 2004, 3 years after 9/11, it is now an avowed enemy of Al 
Qaeda and is viciously battling Al Qaeda in Syria as we speak. It would 
be a wholly unprecedented stretch to suggest that the 2001 AUMF now 
would justify military action against ISIL in Iraq.
  Congress acted in 2002 to authorize military action in Iraq to topple 
the regime of Saddam Hussein. All combat operations ceased in 2011 and 
even the administration now maintains the Iraqi AUMF is obsolete and 
should be repealed. Clearly the 2002 AUMF would not support unilateral 
action against ISIL.
  In some instances a President relies upon a treaty ratified by 
Congress that requires the United States to come to the military 
defense of an ally, but there is no such treaty obligating America to 
defend Iraq in this instance.
  Finally, there is not yet an imminent threat to the United States 
that would allow the President to take unilateral military action 
against ISIL. The administration rightly points out that the growth of 
ISIL could prove a threat to the United States in the medium or long 
term, but they pose no imminent threat to the United States today. Of 
course, should ISIL threaten the U.S. Embassy in Baghdad, the President 
could take emergency military action and rescue American personnel, and 
all of us are watching carefully and all of us will support action to 
protect the lives of our diplomatic personnel.
  I conclude, from looking at all the authorities, that the President 
cannot initiate unilateral military action in Iraq with the sole 
exception of acting promptly if needed to secure American Embassy 
personnel. The dangerous situation of ISIL in Iraq is exactly the kind 
of situation where the President must not only consult with Congress 
but he also must seek congressional approval for any proposed military 
action.
  We know seeking congressional approval for military action is very 
challenging and it is contentious, and it is supposed to be. While this 
often frustrates the Executive, it is how the system is supposed to 
work. When Presidents follow the rule, it generally works out for the 
best. Let me use the recent example of Syria. When the President did 
follow the basic form, it worked out in a way where something positive 
happened--not everything we might want but something positive. The 
President laid down a clear red line: The United States believes it 
would be wrong for Syria to use chemical weapons in violation of the 
1925 Geneva Convention against their use. In August 2013 Syria crossed 
that red line and did use chemical weapons against men, women, and 
children, civilians. The President weighed what to do. He didn't act 
unilaterally. He came to Congress seeking authority to punish the Assad 
administration for using chemical weapons and to deter their use in the 
future.
  As a member of the Foreign Relations Committee, we had extensive 
hearings and then we voted to grant military authority to the President 
to take action in those circumstances. As you know, it was contentious 
in the body. The matter never came to a full vote on the Senate floor 
or the House floor; but after the Foreign Relations Committee 
authorized the President to use military force, Syria then stepped up 
for the first time, acknowledged they had a chemical weapons stockpile, 
essentially acknowledged they had used it, and then committed through 
international organizations at the U.N.

[[Page 10854]]

to destroy one of the largest chemical weapons stockpiles in the world. 
That accomplished the mission the President had put on the table to 
deter future use of chemical weapons. There is no better deterrent of 
that stockpile of chemical weapons than their complete destruction, and 
as of now the entire declared chemical weapons stockpile of Syria has 
been destroyed. Work is underway to determine whether there are 
undeclared elements of the stockpile that still must be destroyed. The 
fact of the destruction of this chemical weapons stockpile, one of the 
largest in the world, happened because the President followed the 
rules, came to the Senate, we acted to support military force, and then 
that led to this important breakthrough.
  I met 2 weeks ago with officials connected with the Israeli 
Government and they described what a game changer it is in the region 
for Syria's neighbors, Turkey, Israel, Jordan, Lebanon, to have that 
chemical weapons stockpile removed. So the President followed the rule, 
came to Congress, and while the Syrian civil war is not over and still 
is carrying on in a horrific way, that huge stockpile of weapons of 
mass destruction is now gone.
  That teaches me and tells me: Let's learn from it.
  The President should come to Congress if military action is 
contemplated in Iraq, and he has an excellent opportunity before him to 
initiate that discussion right now. All know that the 2001 
authorization passed in the days after 9/11 to enable us to go after 
the attack perpetrators is badly in need of an update after 13 years. 
Despite its facial language only allowing military action against those 
complicit in the 9/11 attacks, it has been broadly interpreted to 
authorize a global war against Al Qaeda or associated forces so long as 
they pose a threat to the United States or any of its dozens of 
``coalition partners.'' That AUMF 13 years later has no geographic 
limitations. It has no expiration date. Members of the administration 
have testified in Senate hearings that they expect the war declared in 
that AUMF may go on for the next 25 or 30 years.
  I wasn't here in 2001, but I have no doubt that the Members of 
Congress who voted for that authorization never would have contemplated 
war lasting into the 2030s or 2040s, and the American public has never 
expressed support for such a notion of perpetual war.
  But the threat posed to the United States and our allies by nonstate 
terrorist organizations, whether it is ISIL or Al-Qaeda or Boko Haram 
or Al Nusra or others, is real and it has grown; and the very nature of 
the threat is quite different from the old notion of nation state 
military power that was our standard challenge even through the end of 
the 20th century.
  In a speech in May of 2013 to the National Defense University, 
President Obama recognized that the administration and Congress have to 
work together to examine and update the 2001 AUMF in order to narrow 
its scope, clarify what it allows, and make it suitable for the new 
challenges that are before us. I have heard many of my colleagues in 
this body say exactly the same, but there has been no progress on this 
necessary update. The administration has made no proposal. There is no 
AUMF revision under active consideration in either House. Strangely, 
while all acknowledge the authorization needs an update, we drift from 
crisis to crisis--Syria, Iraq, POW exchanges--without grappling with 
the underlying document that initiated our entrance into war 13 years 
ago.
  We cannot afford further delays in tackling this important task. So 
as I conclude, I encourage all of us, Congress and the administration, 
to embark on the work of updating the 2001 authorization to reflect the 
current dimensions of our security challenges. The administration 
should send to Congress a proposal for a revised and narrowed 
authorization that specifies how the United States should seek to 
counter threats posed by groups such as ISIL. There will be a role for 
the military and there will be a role for counterterrorism activities 
carried out by our intelligence agencies. There will be a role for 
diplomacy and there will also be a role for development assistance to 
eliminate the conditions of desperation that so often breed fanaticism. 
But it is time for those roles to be clearly described so they can be 
publicly debated and ultimately adopted by Congress.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.

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