Authorization of the Use of United States Armed Forces Against Iraq
on the floor of the Senate, October 10, 2002
[To read this in the Congressional Record, go to the October 10, 2002 page, click on the link for "7. Authorization of the Use of United States Armed Forces Against Iraq", and scroll down to pages S10276 through S10288.]
When I came to this body, we didn't have televised coverage. We didn't have a radio. We didn't even have radio coverage of the debates in this Senate. I can remember that when a Senator stood to his feet, other Senators gathered closely. They moved up close in their seats to listen to that Senator. We had no public address system in
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this Chamber. But they were being informed by the Senate debates. The people were being educated and informed as to the great issues of the day. The Senate was an institution which did inform the people. We spent days upon days on the great issues that came before this Senate--more than 100 days, for example, on the Civil Rights Act of 1964, more than 100 days. This institution did its duty to the American people by informing them of the issues of the day, and by debating those issues-- Republicans and Democrats. The aisle was not as wide in those days as it is now. Sometimes I think it is a great canyon here, a great chasm that separates the Democratic and the Republican parties in this Senate. But not so then. We disagreed from time to time.
But I can remember. If I were to take the time now, I could call the names of the faces who in my dreams come back to me--the faces of those who sat in those seats years ago, decades ago. They were men. There was only one woman at that time, Margaret Chase Smith of Maine. But Senators, Republicans and Democrats, joined in informing the people through the process of debate.
I am only one Senator from a very small State. Yet, as I say, within the past week, I have received nearly 20,000 telephone calls and nearly 50,000 e-mails supporting the position I have taken on this floor. This is not counting the calls and the e-mails that have come in to my State office in Charleston, WVA.
I want all of those people across America, out there across the plains, the Great Rockies, across the Mississippi, and to the Pacific coast, from the gulf coast to the Canadian border--I want all those people who took the time to contact me to know how their words have strengthened, heartened me and sustained me in my feeble efforts here to turn the tide of opinion in the Senate.
``The iron will of one stout heart shall make a thousand quail.''
These are my heroes--the people out there who have called, who have written, and who have told me in person as I have walked across the street. They are my heroes. And I will never forget the remarkable courage and patriotism that reverberated in the fervor--in the fervor--of their messages. I gave them hope because they love this country. And they love this Constitution. Senators all know that. The people out there love this Constitution. They love this Constitution. All of the people out there do.
So they are my heroes.
As the Apostle Paul, that great apostle, said, ``I have fought a good fight, I have finished the course, I have kept the faith.''
There are Americans all across this country in every State of this Union who have joined in spirit with me and with a small band of like-minded Senators in fighting the good fight.
We could stay here on this floor and continue to fight. They say, well, we might stay here until 4:30 in the morning. Come on. Come on.
I am thinking of the words of Fitzjames in ``The Lady of the Lake,'' when he stood there before Roderick and said: ``Come one, come all! this rock shall fly From its firm base as soon as I.'' So come on. Let's see the clock turn to 4:30 in the morning. Who cares what time it is as long as we are speaking for our country?
So I say to the distinguished Senator who presides over this Chamber tonight, whose forebear and ancestral relative signed his name at the Constitutional Convention on September 17, 1787--his name was Dayton, Jonathan Dayton. This is his relative who presides over the Senate at this moment.
So we could continue this fight. Let me tell you, ladies and gentlemen, there are several checkpoints--I will call them checkpoints--at which, under the rules, I could cause the Senate to have to go through another cloture and another 72 hours. I could do that. And I would have no hesitancy, not any, in doing it if I did not know the Senate has already spoken.
Also, there is a point at which it becomes time to accept reality and to regroup. It is clear we have lost this battle in the Senate. The next front is the White House. I urge all those people who are following the debate out there, and who have encouraged me in my efforts, and have encouraged the other Senators who have stayed with me firmly--without faltering, without fainting, and without wavering--I urge the people to keep on in their behalf, who have encouraged us in our efforts, I urge them to turn their attention to the President of the United States. Call him, write him, e-mail him, urge him to heed the Constitution and not short circuit this Constitution by exercising the broad grant of authority the Iraq resolution provides.
The President has said on many occasions that he has not yet made up his mind to go to war. And here we are, we have been stampeded into this moment, when we will soon approve this resolution.
Let me say again, there are several checkpoints at which we could play this record over and over again. For example, the title of the resolution could be amended. How about that? And then there is going to be a House resolution coming over to this body, and there is going to be a request, I suppose, after the Senate votes on that resolution, a request to insert the words of the Senate, which are likewise the same words, so that it will have a House number. And there would have been a place.
I will not go through all these places. But we could fight on. No, we would not finish at 4:30 tomorrow morning, we would not finish it at 4:30 the next morning, if we wanted to. I hope the leadership and the Senators will all understand that. I am not bragging. Dizzy Dean said: It's all right to brag if you have done it. We could do that. We could do that. But what good would it do? What good would it do? The course of destiny has already been set by this Senate.
So the President has said on many occasions he has not made up his mind to go to war. When he does make up his mind, if he does, then he should come back to Congress and seek formal authorization.
Let those high-powered lawyers of the White House tell him otherwise. They are going to stand by their client, I suppose.
But they did not go to the same law school I went to. They probably did not have to work as hard as I had to work. Their wives may not have worked as hard as my wife to put me through law school. Well, so much for that.
Let him come back to the Congress for authorization.
Mr. President, I continue to have faith in our system of Government. It works. I continue to have faith in the basic values that shape this country, this Nation. Ours was a great country before it became a great nation. Those values do not include striking first at other countries, at other nations. Those values do not include using our position as the strongest and most formidable Nation in the world to bully and intimidate other nations.
There are no preemptive strikes in the language of the Constitution, I do not care what other Senators say. Those values do not include putting other nations on an enemies list so we can justify preemptive military strikes.
Were I not to believe in the inherent ability of the Constitution to withstand the folly of such actions as the Senate is about to take, I would not stop fighting. Yes, he is 85--85. I will be 85 years old 41 days from now if the good Lord--if the good Lord-- lets me live. But don't you think for a moment I can't stand on this floor all the rest of this night. I like to fight when I am fighting for the Constitution and for this institution. I will fight until I drop, yes, fight until they hack my flesh to the bone. I would fight with every fiber in my body, every ounce of my energy, with every parliamentary tool at my disposal--and there are parliamentary tools at my disposal; don't you ever think there are not--but I do believe the Constitution will weather this storm. The Senate will weather the storm as well.
I only hope that when the tempest passes, Senators will reflect upon the ramifications of what they have done and understand the damage that has been inflicted on the Constitution of the United States.
Now, those people out there believe in the Constitution. And I have been very disappointed to have stood on my feet--an 85- year-old man, standing on his feet, and pleading with his colleagues to stand up for the Constitution--I have been disappointed that some of them seem not to have listened at all. That is a real disappointment. It
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isn't ROBERT C. BYRD who counts; it is the Constitution of the United States. And but for that Constitution, they would not be here, I would not be here, and you, Mr. President, would not be here. It is that Constitution.
And we all take an oath, a solemn oath, to support and defend the Constitution of the United States against all enemies, foreign and domestic.
In the greatest oration that was ever delivered in the history of mankind, the oration ``On the Crown,'' delivered in the year 331 B.C. by Demosthenes in his denunciation of Aeschines, he asked this question: Who deceives the state?
He answered his own question by saying: The man who does not speak what he thinks. Who deceives the state? The man who does not speak what he thinks.
I believe we ought to speak what we think. A political party means nothing, absolutely nothing to me, in comparison with this Constitution which I hold in my hand. It means nothing, political party means nothing to me, in comparison with this great old book which our mothers read, the Holy Bible.
It seems to me that in this debate--thinking about the 50,000 e-mails that have come to this country boy from the hills of West Virginia, 50,000 e-mails, almost 20,000 telephone calls; my wonderful staff have been hard-pressed to take all these calls and log them in--the American people seem to have a better understanding of the Constitution than do those who are elected to represent them.
Now, that is a shame, isn't it? I feel sorry for some of my colleagues. I love them; bless their hearts. I love them. I forgive them. But you might as well talk to the ocean. I might as well speak to the waves as they come with the tides that rise and fall. I might as well speak to the waves, as did King Canute, as to speak to some of my colleagues. They won't hear me. And it isn't because it is ROBERT BYRD. They just don't want to hear about that Constitution.
That is what these people are writing me about. Perhaps it is that their understanding, the understanding of the people, the great mass of people out there, it may be that their understanding of the Constitution has not yet filtered through the prism of the election year politics. That's it--the election year politics.
I believe the American people have a better understanding of what the Senate is about to do, a greater respect for the inherent powers of the Constitution, and a greater comprehension of the far-reaching consequences of this resolution, a greater comprehension than do most of their leaders.
I thank my colleagues who have allowed me to express at considerable length my reasons for opposing the resolution. I thank those Senators, such as the Senator who presides over the Senate at this very moment, I thank those Senators who have stood with me in my fight for the Constitution and for this institution and for that provision in the Constitution that says, Congress shall have power to declare war.
I thank those Senators who have engaged in thoughtful debate with me. I thank Senator McCain. I thank Senator Warner. I thank these men. They stood up for what they believe. They stood up for this administration. The only difference is, I will stand for no administration--none--when it comes to this Constitution. If the administration took a position opposite that Constitution, forget it. I don't care if it is a Democrat.
I do not believe the Senate has given enough time or enough consideration to the question of handing the President unchecked authority to usurp the Constitution and declare war on Iraq. I have no brief for Iraq. But I accept the futility of continuing to fight on this front. So I could keep us here all night tonight. I know there would be other Senators who would stand with me. Other Senators believe as I do. I could keep us here tomorrow. I could keep us here through Saturday. I would hope we would not be in on Sunday. That is the Sabbath Day. But come back on next Tuesday, have at it again, until the flesh from my bones be hacked.
I say to the people of America, to those who have encouraged other Senators and me to uphold the principles of the Constitution: Keep up the fight. Keep fighting for what is right. Let your voices be heard.
Why do you think George Washington crossed the Delaware? I say to my good friend from Delaware, JOE BIDEN, my esteemed friend, my esteemed colleague. He crossed the Delaware, I say to my friend FRED THOMPSON--Senator FRED THOMPSON, we are going to soon miss him. I like him. I like him. He always speaks with great passion and fervor, and he is always respectful of other Senators. He was here during the days of Sam Ervin, Howard Baker, the days of Watergate, that Senator from Tennessee.
Let me say, I will always listen to you, the people out there, and I hope the President will begin to listen to you.
If the President really wants to do something for this country, let him help to fight the war at home. This week, we will soon be passing another CR. Time and time again, the President's Attorney General and the Director of Homeland Security have put the Nation on notice that there is an imminent threat of another terrorist attack to our homeland. And from time to time, they have even identified the most likely targets, such as our nuclear powerplants, our transportation infrastructure, our Nation's monuments, our embassies. They have told our citizens to be vigilant about this imminent risk.
What has the President done to respond to this imminent risk of terrorist attack on our Nation's shoulders? The President has proposed to create a new bureaucracy. He has proposed to move boxes around on an organization of flowcharts. He has proposed to create the second-largest domestic agency in the history of the Republic. Even the President recognizes that actually creating the new Department of Homeland Security will take at least 1 year.
I tell you, my friends, if I ever saw a good lawyer, he sits right here on the back row, right now--that Senator from Tennessee, FRED THOMPSON. Why do I say that? Because he made the most rousing defense of this sorry resolution that is before the Senate and on which we will soon vote, the most rousing defense of it. And yet he is against it. He is against it. That is what I call a good lawyer; he makes a rousing defense of this thing which he hates.
Even the President recognizes that actually creating the new Department of Homeland Security will take at least 1 year. The GAO has said it will take at least 5 to 10 years for a new Department to be effected.
So while our citizens are facing this imminent risk, under the President's proposal, the agencies responsible for securing our borders, such as the Customs Service, the Immigration and Naturalization Service, and the Coast Guard, will spend the next year or more figuring out for whom they work, with whom they work. Instead of focusing on their mission, our border agencies and inspectors will be wondering whether their units will be reorganized or transferred to new locations, and they will be wondering where their phones are, where their computers are, and whether their jobs are going to be eliminated. And what would be happening in the meantime? Who will be keeping the store and watching the terrorists?
Reorganizing our bureaucracy will not improve our Nation's immediate capacity to deter or respond to the imminent threat of a terrorist attack. Since September 11, the Senate Appropriations Committee has focused on providing immediate resources to Federal, State, and local agencies and first responders in order to improve our capacity to respond to this evolving threat.
On September 14, 2001--just 3 days after the horrific attacks on September 11--Congress approved $40 billion. That is $40 for every day since Jesus Christ was born. Congress approved $40 billion, including $9.8 billion for homeland defense. Resources were provided to the FBI to hire more agents and to improve their computers; to State and local governments to improve the capacity of our hospitals and clinics to respond to chemical or biological weapons attacks; to State and local governments to train and equip our law enforcement and fire personnel to respond to attacks; for HHS to purchase smallpox vaccine for USDA; to the FDA to protect our food safety; to the Postal Service to purchase equipment that can protect the mail- -where have you been, Mr. President? That is what
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Congress did--for the FAA to secure cockpits and to improve the security of our airports; to the Department of Transportation for port security; to the Energy Department to help secure our nuclear facilities; to Customs and INS for additional border security inspectors and agencies, and for improved training and equipment.
To listen to the President, he is the only person who has been thinking anything about homeland security. Here is the great Congress of the United States that has been providing moneys for the defense of our country.
Despite objections from the White House, Congress was able to increase funding for homeland security programs by $3.9 billion. Where have you been, Mr. President? If you want to do something, do something here at home.
On November 14, 2001, Senate Democrats supported the inclusion of $15 billion for homeland security in an economic stimulus package, including $4 billion for bioterrorism and food safety; $4.6 billion for law enforcement and responsive initiatives; $3.2 billion for transportation security: and $3 billion for other homeland security programs, including mail screening and protection for our nuclear plants and labs, water projects, and other facilities.
Where has he been, Mr. Commander in Chief? Out on the campaign trail raising money for the campaign? This is what Congress has been doing.
On November 14, 2001, the White House strongly objected to the amendment, asserting that existing funding was ``more than adequate to meet foreseeable needs.''
Now, who is fighting for homeland security? Under pressure from the White House, Senate Republicans, objecting to the emergency designation for the homeland security funding, raised the Budget Act point of order. Efforts to waive the budget point of order failed. On December 4, 2001, the Appropriations Committee reported out, by a vote of 29 to 0, the Defense appropriations bill for fiscal year 2002.
In addition to the $20 billion appropriated on September 14, the bill would have provided $7.5 billion in additional homeland security funds, including $3.9 billion for bioterrorism and food safety; $1.3 billion for antiterrorism law enforcement; $1.43 billion for security of mail and nuclear facilities; $879 million for transportation and border security. The bill would also have provided an additional $7.5 billion to FEMA's disaster relief account for activities and assistance related to 9/11.
On December 5, 2001, in a meeting with congressional leaders, President Bush threatened to veto the Defense appropriations bill because of funding ``that is not needed at this time.''
On December 6, 2001, Senate Republicans objected to the emergency designation for the homeland security funding in the Defense appropriations bill and raised the Budget Act point of order. Efforts to waive the budget point of order failed.
On December 7, 2001, after negotiations with Senate Republicans, homeland security programs were reduced by over $3.6 billion. The Senate then passed the Defense appropriations bill. In April and May of 2002, the Senate Appropriations Committee held five bipartisan hearings, led and conducted by Senator TED STEVENS and me, concerning the defense of our homeland. Senator Stevens and I, and others on that committee, Republicans and Democrats, heard from Governors and from mayors. We heard from firemen, law enforcement, and emergency medical personnel. We heard from specialists in the field of counterterrorism. Based on those hearings, the Committee on Appropriations in the Senate produced a bipartisan supplemental appropriations bill to continue our effort to provide immediate resources to improve our Nation's capacity to deter and respond to terrorist attack.
On May 22, 2002, the Senate Appropriations Committee, by a vote of 29 to 0, reported out a supplemental appropriations bill that included $8.3 billion for homeland defense programs.
Once again, on June 4, 2002, the President threatened to veto the bill because he believed it contained unnecessary homeland security spending.
On June 7, 2002, the Senate passed the Supplemental Appropriations Act for further recovery from and response to terrorist attacks on the United States. The bill provided $8.3 billion for homeland security programs, including the following amounts above the President's request: $265 million for airport security funds; $646 million for first responder programs; $716 million for port security. However, under pressure from the White House, conferees on that bill were forced to reduce homeland security funding from $8.3 billion to $6.7 billion--under pressure from the White House.
In negotiations with House Republicans, homeland security funding was dropped for cybersecurity, for improved capacity for the Centers for Disease Control to investigate potential biological attacks, for airport security, for the Coast Guard, and for the Customs Service.
On July 24 of this year, the Senate passed the conference report to the Supplemental Appropriations Act for further recovery from and response to terrorist attacks on the United States. Get this now; we are talking about war here, the war on terrorism. Where? Here in this country. This act reduced the $8.3 billion for homeland security appropriated by the Senate to $6.7 billion.
Did the White House agree to fund the full $6.7 billion for homeland defense programs? Did it?
No. The White House talks a good game on homeland defense, but the White House support is more about rhetoric than it is about resources. In order for the President to spend $2.5 billion for homeland defense spending, it was necessary for him to do what? Just sign his name on a document designating the funding as an emergency requirement.
What did the President choose to do? Did he choose to sign his name and start that $2.5 billion to flowing into the States and counties and municipalities of this country? No. The President chose not to make that designation.
In making that decision, he terminated $2.5 billion of funding for the FBI, funding to train and equip our Nation's firefighters, funding for the Corps of Engineers to help ensure our water supply, funding for security at nuclear facilities, funding for the Coast Guard.
Now tell that, Mr. President, at your next campaign stop, your next fundraiser when you are talking about making war on Iraq. Tell the people there what I have been reading. It is fact. These are for the record.
One of the lessons we learned at the World Trade Center on September 11 was that our fire personnel could not communicate by radio with police personnel; that local officials could not communicate with State and regional personnel.
When the President decided to block the $2.5 billion, he blocked the $100 million that we approved to help State and local governments across the land to solve the problem, and $90 million to provide medical assistance to the first responders at the World Trade Center was lost.
What is the President's solution for the imminent threat to our Nation's homeland security? Rhetoric? Yes. More bureaucracy? Yes. Resources to respond to the immediate threat? No.
Mr. President, with reference to this Commander in Chief business that we hear about--oh, the Commander in Chief, they say. I listen to my friends across the aisle talking about the Commander in Chief. We must do this for the Commander in Chief; we must stand shoulder to shoulder with the Commander in Chief. The Commander in Chief. Of what is he Commander in Chief? The army, the navy, and the militia of the several States. But who provides the army and the navy? Who provides for the calling out of the militia of the several States? Congress. So much for the the term ``Commander in Chief.''
Charles I used that term in 1639--Commander in Chief. You know what happened to Charles I of England? The swordsman cut off the head of Charles I on January 30, 1649. So much for Commander in Chief.
Parliament and the King of England fought a war. Can you imagine that? Can you imagine Congress fighting a war with the President of the United States? They did that in England. Yes, Parliament and the King fought a war. Who lost? The King. Who was it? King Charles I. A high court convened on January 1, I believe it was, 1649, and in 30 days they cut Charles I's head off-- severed it from his body. So much for
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Charles I. That was the Commander in Chief. Yes. Hail to the chief.
I respect the President as much as anybody else. But the Barons at Runnemede on the banks of the Thames on June 15, 1215, took it upon themselves to let the King know that there was a law, and that Kings had to live by the law, just as did barons and others.
I do not know who is talking to this President down here. I do not know who among his crowd down there is trying to pump him up, but my friends, this President of the United States is the President by virtue of this Constitution. He is created by this Constitution that I hold in my hand, which says in article II that the President shall be Commander in Chief. And yet this refers to the Constitution in this national security strategy of the United States of America printed on September 2002. It refers to the Constitution not even with a capital letter.
The Constitution of America--what is the matter with those people? Haven't they studied the Constitution down at the other end of the avenue? They better become aware of it. This is the Constitution, and that Constitution refutes this resolution on which Congress is about to vote to give to the President of the United States power to determine the use of the military forces, when he will use them, where he will use them, how long he will use them. It is this Constitution. You better believe it, may I say to those who advise the President.
I think the President is probably a much better individual by himself, but somebody is giving him bad advice.
Here is what Hamilton says. Let's read what Hamilton says. He is one of the three authors of the ``Federalist Papers.'' Hamilton, who was shot to death in Weehawken, NJ, on the 11th of July, 1804. He died on the 12th of July, 1804; shot by the Vice President of the United States; murdered by the Vice President of the United States. Let's hear what Alexander Hamilton has to say in the Federalist Paper No. 69. Read it. These are the ``Federalist Papers.'' There are 85 of them written by Jay, Hamilton, and Madison. Let's hear what he says about the Commander in Chief. I want the Commander in Chief to hear me. I want the Commander in Chief to hear not what ROBERT BYRD said--who is he?--but read what Alexander Hamilton said:
The President is to be the ``commander-in-chief'' of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. .....In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these:--First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore--
Talking about this article of the Constitution--
In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it.
Get that down there at the other end of the avenue. Read it.
Second. The President is to be commander-in-chief. .....It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the Constitution under consideration, would appertain to the legislature.
That is Hamilton.
I am reading from the Federalist Papers. Perhaps I ought to send a copy down to the White House. I will see if I can't do that. I will send them a copy. It will not cost them anything, just a gift from ROBERT C. BYRD.
Now, I have a little more to say. Suffice it to say there are other of my colleagues, and I, who have stood on this floor and we have pointed to the Constitution of the United States. We have said time and time again, as we have offered amendments, to try to uphold this Constitution of the United States, read those amendments. They went down, I am sorry to say, but I am not discouraged.
Let me read some verses from the Book of Luke in the Holy Bible, beginning with chapter 16, verse 19 and continuing through verse 31:
There was a certain rich man, which was clothed in purple and fine linen, and fared sumptuously every day. And there was a certain beggar named Lazarus, which was laid at his gate, full of sores, and desiring to be fed with the crumbs which fell from the rich man's table. Moreover the dogs came and licked his sores. And it came to pass that the beggar died, and was carried by the angels into Abraham's bosom. The rich man also died, and was buried.
And in hell he lift up his eyes, being in torments, and seeth Abraham afar off, and Lazarus in his bosom. And he cried and said, Father Abraham, have mercy on me, and send Lazarus, that he may dip the tip of his finger in water, and cool my tongue; for I am tormented in this flame.
But Abraham said, Son, remember that thou in thy lifetime receivedst thy good things, and likewise Lazarus evil things; but now he is comforted and thou art tormented. And beside all of this, between us and you there is a great gulf fixed; so that they which would pass from hence to you cannot. Neither can they pass to us, that would come from thence.
Then he said, I pray thee therefore, father, that thou wouldest send him to my father's house; For I have five brethren: that he may testify unto them, lest they also come into this place of torment. And Abraham saith unto him, They have Moses and the prophets; let them hear them. And he said, Nay, father Abraham; but if one went unto them from the dead they will repent. And he said unto him, if they hear not Moses and the prophets, neither will they be persuaded, though one rose from the dead.
There you have it. We can speak until we are blue in the face, we can speak until our tongues fall out, and they will not hear us. So if there were those who were brought from the dead, would some listen?
Some would; some would not.
We have spoken. We have spoken out of our hearts, and we can speak until our hearts fall from our bodies, but some would not hear. Let those who will not hear understand that this Constitution will endure. It will endure because it was written, as John Marshall said, to endure for the ages.
In closing, I want to thank my dear friends in this Senate who have stood in this Chamber day after day in the effort to educate our people.
The Senate is a great institution, but somehow I think we are failing. We are failing to educate the people. Why? Because we do not want to spend enough time. How much time have we spent on this resolution as of yesterday at 4 p.m.? A little over 25 hours on this bill--25 hours. Why, many of the larger municipalities in this country would spend a week on an application for a sewer permit. And here we spend 2 days?--that is what it amounts to, 25 hours--and we are ready to quit.
We know we might as well quit because this cloture rule is being used against us. Why at this critical time, when we are discussing the most critical legislation we have had before the Senate this year, the most critical legislation we may have in a long time? We have been stampeded, we have been rushed, and it is unfair to the people of this country. Yet it has to be that way.
I have letters from constitutional scholars in response to my inquiry of them as to the war powers of the United States Congress. I received several letters from constitutional scholars from around the country, and I ask unanimous consent that they be printed in the RECORD: A letter by Jane E. Stromseth, professor of law, Georgetown University Law Center; a letter from Tufts University, the Fletcher School of Law and Diplomacy, a letter signed by Michael J. Glennon, professor of international law.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
GEORGETOWN UNIVERSITY LAW CENTER,
Washington, DC, August 26, 2002. Hon. ROBERT C. BYRD, U.S. Senate, Washington, DC.
DEAR SENATOR BYRD: Thank you for your letter of July 22, asking for my opinion regarding whether the Bush Administration currently has sufficient constitutional and/or statutory authority to introduce U.S. Armed Forces into Iraq for the purpose of removing Saddam Hussein from power. This question is of vital importance to our country and our Constitution, and I appreciate the opportunity to address it.
The answer to your question requires an interpretation of the Constitution and of several statutes, and it also depends on the factual circumstances surrounding any contemplated military action. As I discuss below, if the United States or its armed
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forces are subject to attack or imminent attack by Iraq, the President can invoke his constitutional authority as Commander in Chief to repel sudden attacks. Also, if the President establishes a direct link between Iraq and the attacks of September 11, he can invoke S.J. Res. 23 (Pub. L. No. 107-40) as statutory authority to commit U.S. forces to Iraq. However, based on the facts as they have been presented by the Bush Administration as of August 26, 2002, neither an imminent attack by Iraq nor a clear link between Iraq and the September 11 attacks have been established. Moreover, given the likely scale and risks of a U.S. military action to remove Saddam Hussein from power, the commitment of U.S. forces to Iraq to impose a regime change would constitute a war requiring prior congressional authorization, which, absent a connection to the September 11 attacks does not presently exist. While serious arguments can be advanced that the 1991 Gulf War authorization, coupled with subsequent legislative action, provide statutory authority to use U.S. armed forces to remove Saddam Hussein as part of enforcing the Gulf War cease-fire resolution (UN Security Council Resolution 687), those arguments ultimately fall short on close examination. In sum, whether commencing U.S. military action against Saddam Hussein, in circumstances outside a link to Sept. 11 or an attack or imminent attack against the United States, is a wise policy is a question on which reasonable people can disagree; it is also a question that ought, under our Constitution, to be debated by Congress and its authorization secured before any such military action commences. The basis for these conclusions is set forth full below.
First Principles
As you know well, the Constitution's war powers provisions are part of a structural system of checks and balances designed to protect liberty by guarding against the concentration of power. The Constitution gave Congress the power to declare war because the Founders believed that such a significant decision should be made not by one person, but by the legislature as a whole, to ensure careful deliberation by the people's elected representatives and broad national support before the country embarked on a course so full of risks. As James Madison put it: ``In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislation, and not to the executive department . . . [T]he trust and the temptation would be too great for any one man. . . .''1 The Founders, in short, vested the power to decide whether the country should go to war in the Congress to ensure that the decision to expose the country to such sacrifices and costs reflected the judgment and deliberation of the legislative branch as a whole. 1 James Madison, in Alexander Hamilton & James Madison, Letters of Pacificus and Helvidius on the Proclamation of Neutrality of 1793, at 89 (Washington, D.C., J. Gideon & G.S. Gideon, 1845).
At the same time, the framers wanted a strong Executive who could ``repel sudden attacks'' and act with efficiency and dispatch in protecting the interests of the United States in a dangerous world. By making the President Commander in Chief, moreover, they sought to ensure effective, unified command over U.S. forces and civilian accountability. My best reading of the constitutional sources is that the Founders expected the President, as Commander in Chief and Chief Executive, to protect the United States in a dangerous and uncertain world by repelling attacks or imminent attacks against the United States, its vessels, and its armed forces, but not, on his own, to go beyond this authority and commence war without congressional authority. The Founders, in short, made a clear distinction between defending against attacks initiated by others and commencing war.
Historical practice since the Constitution's ratification has not fundamentally altered how we should understand the Constitution's allocation of war powers today. On the contrary, practice cannot supplant or override the clear requirements of the Constitution, which gives the power to declare or initiate war to Congress. Furthermore, of the dozen major wars in American history, five were formally declared by Congress and six were authorized by other legislative measures.2 Whatever conclusions one might reach about small-scale uses of force, which admittedly raise more complicated issues, the fact remains that major wars have been authorized by Congress.3 2 President Truman committed U.S. forces to Korea without seeking congressional authorization. For a discussion of constitutional war powers and the Korean War, see Jane Stromseth, ``Rethinking War Powers: Congress, The President, and the United Nations,'' 81 Georgetown Law Journal 597, 621-640 (1993). Congress subsequently enacted legislation to provide funds for the Korean War and to extend the draft, id. at 626, 630.
3 In a longer piece, I discuss original intent, historical practice, and current arguments about war powers more fully and systematically, and I draw upon my conclusions in that piece here. See Jane E. Stromseth, ``Understanding Constitutional War Powers Today: Why Methodology Matters,'' 106 Yale L.J. 845 (1996).
The War Powers Resolution (Pub. L. No. 93-148) aims to ``insure that the collective judgment of both the Congress and the President'' apply to the introduction of U.S. forces into hostilities and to the continued use of those forces. Moreover, it seeks to enable the Congress to better fulfill its constitutional responsibilities by requiring the President ``in every possible instance'' to ``consult with Congress before introducing'' U.S. armed forces into hostilities or imminent hostilities. Among its other provisions, the War Powers Resolution makes clear, in Section 8(a), that authority to introduce U.S. Armed Forces into hostilities or imminent hostilities ``shall not be inferred . . . from any provision of law . . . , including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.'' This clear-statement rule is designed to serve the constitutional purpose of ensuring a clear and deliberate congressional authorization of force. Thus, when Congress authorized commencement of the Gulf War in 1991, and again when Congress authorized the use of force in response to the September 11 attacks, it expressly affirmed that it was providing specific statutory authorization within the meaning of the War Powers Resolution.
Moreover, the War Powers Resolution makes clear that it is not intended ``to alter the constitutional authority of the Congress or of the President,'' nor shall it ``be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities . . . which authority he would not have had in the absence of this joint resolution.'' (Section 8(d)(1) and 8(d)(2)). Thus, contrary to claims sometimes made, the War Powers Resolution does not authorize the President to commit U.S. forces to war for 60 days.4 On the contrary, because the Constitution requires congressional authorization to commence war, the War Powers Resolution should not be read to confer such authority on the President. Congress thus expressly authorized the 1991 Persian Gulf War and certainly did not view the War Powers Resolution as obviating the need for such authorization. (I have attached my summary of the congressional debate preceding the Gulf War as an appendix to this letter). 4 The War Powers Resolution and its 60/90 day time-clock apply to a wide variety of situations in which U.S. forces are introduced into hostilities as well as into ``situations where imminent involvement in hostilities is clearly indicated by the circumstances.'' Whatever effects this statute has, or was intended to have on smaller-scale deployments of force, including deployments that involve simply the prospect of hostilities, the War Powers Resolution cannot be read as authorizing 60 days wars because of the clear language to the contrary in sections 8(d) and 2(c) of the statute.
If the President were to commit U.S. armed forces to Iraq for the purpose of removing Saddam Hussein from power, the United States would be embarking on what likely would be a major and sustained commitment of military forces in a campaign that would involve enormous risks and substantial potential casualties. In order to commit U.S. forces to such a military action, the President would need authority to act.
Constitutionally, the President possesses the power to repel sudden attacks, which, in my view, includes the power to forestall imminent attacks against the United States and its armed forces, and to protect Americans in imminent danger abroad.5 In an age of terrorism, there may well be direct and imminent threats to the United States that require an immediate defensive response by the President and constitute a legitimate exercise of the international right of self-defense. But, at this point, the President has not offered evidence of an imminent attack by Iraq on the United States or its forces. The purpose behind the President's power as Chief Executive and Commander in Chief to ``repel sudden attacks'' is to give the President the flexibility to act to defend the United States when there is not time to consult with Congress. But the decision to go beyond this and to commence a war is vested in Congress. Moreover, there is time for a thorough legislative debate regarding Iraq; the United States and its forces are not currently being attacked; military forces would be built up over a period of time before military action could be commenced; and ample time exists to consult with Congress and seek its authorization to use force. 5 This interpretation of the President's authority is consistent with the understanding reflected in the original Senate version of the War Powers Resolution. See S. Rep. No. 93-220, at 22 (1973). For a discussion of the scope of the President's defensive war powers, see Stromseth, ``Understanding Constitutional War Powers Today: Why Methodology Matters,'' 106 Yale L. J. 845, 888-892 (1996).
Major military action with far-reaching objectives such as regime change is precisely the kind of action that constitutionally should be debated and authorized by Congress in advance. Under present circumstances, which admittedly could change, military action against Iraq to force a change in regime would pose significant risks to U.S. forces, including risks of Iraqi retaliation with weapons of mass destruction, and risks of a larger conflict in an already hemoraging Middle East. Initiating a military confrontation of this nature would be a decision to engage in war that is precisely the kind of decision the Founders vested in Congress by virtue of its power to declare war. Moreover, the purposes behind that power (ensuring deliberation, democratic consensus and national unity before
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engaging in war) are critical if the American people and American armed forces are being asked to bear those risks. In short, under the factual circumstances that exist as of the date of this letter, the President cannot rely on inherent constitutional authority to commit U.S. forces to Iraq for the purpose of removing Saddam Hussein from power.
Congress's Post-September 11 Authorization of Force
Whether statutory authority presently exists to introduce U.S. armed forces into Iraq to depose Saddam Hussein depends on whether such action would fall within the provisions of S.J. Res. 23 (Pub. L. No. 107-40), adopted in response to the September 11 attacks.
Congress's authorization for the use of force against those responsible for the attacks of September 11 is an express recognition that Congress and the President both have a critical constitutional role to play in the war on terrorism. S.J. Res. 23 authorizes the President: ``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.'' Thus, the force must be directed against those responsible for the September 11th attacks, or those who harbored such organizations or persons; and the purpose of using force is focused and future-oriented: to prevent additional terrorist acts against the United States by the states, organizations, or persons responsible for the September 11th attacks or who harbored those responsible.
Congress' post-September 11th resolution was an unambiguous decision to authorize force. Like the Gulf War authorization in 1991, the authorization explicitly affirms that it ``is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.'' This removes any actions that fall within the scope of the authorization from the War Powers Resolution's 60-day time-clock provision. At the same time, Congress made clear that the requirements of the War Powers Resolution otherwise remain applicable, which would include the requirement of regular reporting and consultation. Moreover, in signing the Joint Resolution, President Bush made clear that he would consult closely with Congress as the United States responds to terrorism.
Whether this joint resolution authorizes military action against Iraq to remove Saddam Hussein from power depends on whether the requisite link to the attacks of September 11 exists or not. That is, did Iraq ``plan [ ], authorize, [ ] commit [ ], or aid [ ] the September 11 attacks,'' or ``harbor'' organizations or persons who did? Under the terms of the resolution, the President determines whether such a link to the September 11th attacks is established, but Congress undoubtedly expected that the President would make his determination and the basis for it known to Congress. In a matter as momentous as commencing hostilities against Iraq, Congress and the American people would certainly expect a clear and convincing indication of evidence linking Iraq to the September 11 attacks. As of August 26, 2002, the Administration, to my knowledge, has not made such a showing nor publicly argued that there is a direct link between Iraq and the September 11 attacks. Nor has the Administration presented its views regarding whether using force to remove Saddam Hussein from power is ``necessary and appropriate force ..... in order to prevent any future acts of international terrorism against the United States'' by the nations, organizations or persons responsible for the September 11 attacks. If the link between Iraq and the September 11 attacks is tenuous, additional congressional authorization clearly addressing Iraq would better serve the important constitutional purposes underlying Congress's power to declare war: congressional deliberation and national consensus before the country embarks on a major military action so full of risks.
The 1991 Gulf War Authorization
Some argue that the President has current authority to use U.S. forces against Iraq to remove Saddam Hussein based on the 1991 Use of Military Force Against Iraq Resolution (Pub. L. 102-1). This Resolution, adopted prior to the 1991 Gulf War, authorized the President to use U.S. Armed Forces pursuant to U.N. Security Council Resolution 678 to achieve implementation of previous, enumerated Security Council resolutions.6 Those Security Council resolutions included Resolution 660 (1990) demanding that Iraq withdraw immediately from Kuwait. UN Security Council Resolution 678, in turn, authorized UN member states cooperating with Kuwait ``to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.'' In contrast to this UN resolution, which refers to ``all subsequent relevant resolutions,'' the 1991 congressional authorization of force was crafted to refer only to implementation of specific UN resolutions adopted prior to Resolution 678--resolutions that focus above all on Iraqi withdrawal from Kuwait and restoration of Kuwait's sovereignty. Congress, in short, tailored its 1991 authorization to the specific goal of liberating Kuwait rather than providing an open-ended authorization of force. 6 H.J. Res. 77, Pub. L. No. 102-1, provides in Section 2(a): ``The President is authorized, subject to subsection (b), to use United States armed forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.'' Section 2(b), in turn, requires the President, before using force, to make available to Congress his determination that ``the United States has used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the United Nations Security Council resolutions cited in subsection (a); and ..... that those efforts have not been and would not be successful in obtaining such compliance.''
Those who invoke the 1991 Use of Military Force Against Iraq Resolution as current authority to remove Saddam Hussein begin by noting that Iraq is in material breach of UN Security Council Resolution 687 (the Gulf War cease-fire resolution). That resolution requires Iraq to relinquish all weapons of mass destruction and authorized a UN Special Commission (UNSCOM) to monitor Iraq's compliance. Resolution 687, in particular, requires Iraq to ``unconditionally accept the destruction, removal, or rendering harmless, under international supervision'' of all chemical and biological weapons and all ballistic missiles with a range exceeding 150 kilometers and to ``unconditionally undertake not to use, develop, construct or acquire'' such weapons. (Resolution 687, paragraphs 8 and 10). Iraq likewise is required not to develop or acquire nuclear weapons or subsystems or components, and to submit to ongoing monitoring and verification of its compliance (paragraphs 12, 13). Undoubtedly, Iraq's persistent refusal to allow full, unimpaired weapons inspections is a clear and unacceptable breach of Resolution 687. The domestic legal question then is: has Congress authorized the use of U.S. armed forces to remove Saddam Hussein from power in order to enforce UN Security Council Resolution 687?
The 1991 Authorization for Use of Military Force Against Iraq Resolution does not, on its face, provide authorization to use force to implement Resolution 687. Adopted prior to the Gulf War, the 1991 Joint Resolution authorized the President to use U.S. armed forces pursuant to UN Resolution 687 in order to achieve implementation of specific UN resolutions adopted prior to Resolution 687. So purely as a temporal matter, the cease-fire resolution (687), which came at the end of the Gulf War, is not among the UN resolutions enumerated in the 1991 Joint Resolution. Consequently, the 1991 authorization does not provide clear authority to use force today to remove Saddam Hussein from power as a means to enforce the Gulf War cease-fire resolution.
Since 1991, Congress has indicated in a ``sense of the Congress'' resolution its support for using ``all necessary means'' to achieve the ``goals'' of UN Resolution 687; Congress has also indicated its support for a policy of regime change in Iraq. Yet, upon careful examination, these indications of congressional intent do not provide a clear authorization by Congress of the use of U.S. armed forces to attack Iraq to remove Saddam Hussein from power. If the United States is to commence war against Iraq, and to expose U.S. forces and citizens to the considerable costs and sacrifices that this would entail, both the Constitution and the War Powers Resolution (section 8(a)(1)) expect a clear authorization from Congress that reflects a deliberate decision to initiate hostilities on a major scale. The various congressional actions since 1991 concerning Iraq do not provide that authorization.
First, Section 1095 of the FY1992 Defense Authorization Act (Pub. L. 102-190, signed December 5, 1991) declared the sense of the Congress that Iraq's noncompliance with UN Resolution 687 constitutes ``a continuing threat to the peace, security, and stability of the Persian Gulf region'' and that ``the Congress supports the use of all necessary means to achieve the goals of Security Council Resolution 687 as being consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1).'' At the same time, Section 1095 also expressed the sense of the Congress that ``the President should consult closely with the partners of the United States in the Desert Storm coalition and with the members of the United Nations Security Council in order to present a united front of opposition to Iraq's continuing noncompliance with Security Council Resolution 687.''
Some may contend that Section 1095 together with the 1991 Authorization for Use of Military Force Resolution gives the President the authority to use force to commence war against Iraq to impose a regime change because the 102nd Congress expressed its view that using ``all necessary means to achieve the goals of Security Council Resolution 687'' is ``consistent with'' the 1991 authorization of force. Iraq is in material breach of Resolution 687, as it was back in 1991, and thus, according to this argument, the President can use force to achieve Iraq's compliance, in accordance with Section 1095 and the 1991 authorization, by removing Saddam Hussein from power.
Yet, upon careful review, this argument ultimately falls short. First, regime change goes beyond the provisions or requirements of UN Resolution 687, so Congress has not provided clear authority for commencing hostilities for this purpose as a means to implement 687. It is one thing to use limited force to enforce no-fly-zones, for instance; it is a quite different thing to commence war
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to remove Saddam Hussein from power. Second, and more importantly, Section 1095 does not provide the clear authorization of war that both the Constitution and the War Powers Resolution expect. Section 1095 does not use the word ``force'' or ``authorize''; rather, it is a ``sense of the Congress'' resolution indicating that Congress ``supports'' the use of ``all necessary means'' to ``achieve the goals'' of Resolution 687 as being consistent with the 1991 Authorization. Section 1095 also fails to fulfil the War Powers Resolution's clear-statement rule that authority to use force cannot be inferred from legislation that does not specifically cite its provisions. Although Section 1095 refers to the 1991 Authorization, it does not itself cite the War Powers Resolution. Constitutionally, reliance on a ``sense of the Congress'' resolution in a massive defense authorization bill enacted over a decade ago as authorization to commence a war against Iraq today to remove Saddam Hussein from power falls short of a clear contemporaneous authorization of major military action that is faithful to the purposes underlying the Constitution's vesting of the power to declare war in Congress.
The Constitution vested the power to declare war in Congress to ensure careful deliberation by the Congress as well as the President before the United States commenced war. Much has changed over the last decade, particularly after the attacks of September 11, and initiating war against Iraq today clearly would involve substantial costs and risks for the United States, our forces and citizens, and for our allies. Reasonable people may come to different conclusions on the merits of this issue. But commencing a major military action against Iraq to remove Saddam Hussein from power would clearly constitute war, and congressional deliberation and clear authorization is required. Reliance on an ambiguous ``sense of the Congress'' resolution adopted over a decade ago falls short of clear authority to commence war against Iraq. The American people, including the brave men and women who fight for our country, would expect a full debate and consideration of the issue from their elected representatives in Congress in light of the circumstances we face today. The Constitution's wisdom on this point is compelling: Authorization, if provided by Congress, ensures that the costs and implications of any such action have been fully considered and that a national consensus to proceed exists. Congressional authorization also ensures American combat forces that the country is behind them, and conveys America's resolve and unity to allies as well as adversaries.
To be sure, congressional action since 1991 indicates Congress's continuing concern about Iraq's noncompliance with UN Resolution 687 and Congress's support for maintaining the no-fly-zones. But Congress has not provided clear statutory authority to commence war against Iraq to overthrow Saddam Hussein. In 1998, in response to Saddam Hussein's continuing defiance of UN Resolution 687 and his refusal to allow weapons inspections, the Senate and House passed a resolution, S.J. Res. 54 (Pub. L. 105-235, signed Aug. 14, 1998), which declared Iraq in ``material breach'' of its international obligations and ``urged'' the President ``to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations.'' This did not, however, provide clear authorization to use U.S. armed forces.
Later in October 1998, Congress declared in the Iraq Liberation Act of 1998, Pub. L. 105-338 (112 Stat. 3178), that it ``should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.'' (sec. 3). But that Act also declared that ``[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces . . . in carrying out this Act'' except as provided in section 4(a)(2) of the Act, which authorizes the President to provide assistance to Iraqi democratic opposition organizations through a ``drawdown of defense articles from the stocks of the Department of Defense, defense services of the Department of Defense, and military education and training for such organizations.'' (sec. 4(a)(2)).
Some may argue that the 1991 Authorization and Section 1095--combined with Pub. L. 105-235 (declaring Iraq in material breach of its international obligations); Publ. L. 105-338 (calling for a regime change in Iraq); and congressional acquiescence during ``Operation Desert Fox'' (Dec. 16-19, 1998) when force was used in response to Iraq's refusal to readmit weapons inspectors--amounts to implied authorization by Congress to use U.S. armed forces on a more substantial scale to remove Saddam Hussein from power. See Dames & Moore v. Regan, 453 U.S. 654 (1981) (relying on related legislation and congressional acquiescence in holding that the President was implicitly authorized to suspend claims pending in U.S. courts).
This argument falls short as well. While Congress's acts and resolutions clearly indicate its concern about Iraq's noncompliance with UN Resolution 687, nowhere in the record is there explicit authorization by Congress to commence a war against Iraq to remove Saddam Hussein from power. Sense of the Congress resolutions and congressional acquiescence cannot substitute for a clear authorization to initiate war. They do not meet the clear-statement provisions of Section 8 of the War Powers Resolution. Furthermore, the principles underlying the Constitution's decision to vest the power to declare war in Congress are not served by relying on ambiguous indications of Congressional intent regarding force. Moreover, Congress itself decisively closed the door to ``composite'' interpretations of its intent in 1998, when it made clear that its support for a policy of regime change should not be ``construed to authorize or otherwise speak to the use of United States Armed Forces.''
Summing Up
To recap the basic points of this letter: If the United States is subject to attack or imminent attack by Iraq, the President clearly possesses constitutional authority to use U.S. armed forces. Likewise, if it can be demonstrated that Iraq ``planned, authorized, committed, or aided'' the September 11 attacks, or ``harbored'' those responsible, the President would have authority to use force under S.J. Res. 23. If the link is tenuous and disputed, however, the constitutional purposes underlying the vesting of the power to declare war in Congress would be best served by an additional clear, express authorization of force against Iraq that reflects the deliberation and judgment of the Congress. Finally, Congress's authorization of the Persian Gulf War, together with subsequent legislative action, fall short of a clear authorization of war against Iraq to remove Saddam Hussein from power.
Both the Constitution and the War Powers Resolution affirm the critical importance of ensuring that decisions to commit U.S. forces to war reflect the deliberation and support of both the President and the Congress. Prior to the Persian Gulf War, the President obtained clear authority to use force from Congress. Likewise, in response to the September 11 attacks, Congress and the President acted together in enacting S.J. Res. 23. As our country moves ahead in the war against terrorism and as it considers policy options with respect to Iraq, I sincerely hope that the Congress and the President will work together as the Constitution envisions.
Please call on me again if I can be of assistance.
Sincerely,
Jane E. Stromseth, Professor of Law.
--
TUFTS UNIVERSITY, THE FLETCHER SCHOOL OF LAW AND DIPLOMACY,
MEDFORD, MA, AUGUST 20, 2002. Hon. ROBERT C. BYRD, U.S. Senate, Washington, DC.
DEAR SENATOR BYRD: Thank you for your letter of July 22, 2002 requesting my opinion whether the President currently has authority under U.S. domestic law to introduce the U.S. armed forces into hostilities against Iraq for the purpose of removing Saddam Hussein from power.
To summarize, I believe that he does not, although that conclusion is based upon the assumption that Iraq was not involved in the events of September 11, and that use of force for this purpose would risk substantial casualties or large-scale hostilities over a prolonged duration. I reach that conclusion for the following reasons:
A. No treaty currently in force gives the President authority to use force.
B. None of the three relevant statutes gives the President authority to use force.
1. The War Powers Resolution confers no power on the President to introduce the armed forces into hostilities that he would not have had in its absence.
2. Congress's Gulf War authorization would confer such power only if Security Council Resolution 678 did so, and Resolution 678 probably does not do so.
a. The authority conferred by Resolution 678, which authorized use of force against Iraq following its invasion of Kuwait, was narrowly circumscribed and was directed at reversing the Iraqi invasion of Kuwait.
b. That authority most likely was extinguished on April 6, 1991, the date the Iraqis notified the United Nations of their acceptance of the pertinent provisions of Security Council Resolution 687, which declared a formal cease-fire.
c. Once extinguished that authority did not revive when Iraq failed to comply with its obligations under Resolution 687.
d. A decision to revive Resolution 678 must be made by the Security Council and cannot be made by an individual member state.
e. It would be inappropriate to infer Security Council intent to revive Resolution 678 from acquiescence by the Council to subsequent military strikes against Iraq that were not expressly authorized.
f. The War Powers Resolution requires that doubts flowing from ambiguous or unclear measures be resolved against finding authority to use force; at a minimum, these considerations raise such doubts.
3. S.J. Res. 23 would permit use of force against Iraq only if Iraq participated in the events of September 11.
C. Absent authorization from a treaty or statute, authority to use force against Iraq can derive only the Constitution. The Constitution's text, the case law, custom, the intent of the Framers, and structural and functional considerations all suggest that, to the extent that use of force against Iraq would risk substantial casualties or large-scale hostilities over a prolonged duration, prior congressional approval would be required.
I now turn to a closer examination of each of the three sources from which authorization to use force could in principle derive: a treaty, a statute, or the Constitution.
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A. Authorization by treaty
No treaty currently in force gives the President authority to use force. Indeed, the United States has never been a party to any treaty that purported to give the President authority to use force. The constitutionality of any such treaty would be doubtful in that it would necessarily divest the House of Representatives of its share of the congressional war power. (For this reason, all of the United States' mutual security treaties have made clear that they do not affect the domestic allocation of power.) Moreover, war- making authority conferred by any such treaty would be cut off unless it met the requirements of section 8(a)(2) of the War Powers Resolution. Section 8(a)(2) requires, in effect, that any treaty authorizing the use of force meet two conditions. The first condition is that any such treaty must ``be implemented by legislation specifically authorizing'' the introduction of the armed forces into hostilities or likely hostilities. This condition is not met because no treaty is so implemented. The second condition is that any such implementing legislation must state that it is ``intended to constitute specific statutory authorization'' within the meaning of the War Powers Resolution. Again, since no implementing legislation is in effect, the second condition is also not met. Thus it must be concluded that, if further authority to use force is required, the President cannot seek that authority from any treaty. * * * * *
B. Authorization by statute
The second source to which the President might turn for authority to use force is statutory law. I referred above to the provision of the War Powers Resolution that limits authority to use force that can be inferred from a treaty. A companion provision limits such authority that can be inferred from a statute. That provision is section 8(a)(1). Section 8(a)(1) sets out two similar conditions that must be met before authority to use armed force can be inferred from a given statute. The first condition is that such a statute must ``specifically authorize'' the introduction of the armed forces into hostilities or likely hostilities. The second condition is that such a statute must state ``that it is intended to constitute specific statutory authorization within the meaning of'' the War Powers Resolution. Unless each condition is met, a given statute may not be relied upon as a source of authority to use armed force. Arguments challenging the validity of this provision are essentially frivolous. (Archibald Cox testified that he was ``aghast'' at the contention; I addressed the argument in an appendix to my testimony before the Senate Judiciary Committee on April 17, 2002.)
The War Powers Resolution cannot itself be relied upon as authorization to introduce the armed forces into hostilities because it does not meet these two conditions and because it explicitly provides that it confers no power on the President to introduce the armed forces into hostilities that he would not have had in its absence. Two statutes now in effect, however, may meet these conditions. The first statute is H.J. Res. 77 of January 14, 1991 (P.L. 102-1), the law authorizing use of force against during the Gulf War. The second statute is S.J. Res. 23, the law enacted by Congress and signed by the President on September 18, 2001 (P.L. 107-40).
1. The Gulf War authorization
Congress's Gulf War resolution authorized the President to use force against Iraq only to the extent that such use of force had been authorized by the United Nations Security Council. Section 2(a) of P.L. 102-1 provides that ``[t]he President is authorized, pursuant to subsection (b), to use the United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.'' (Subsection (b) required the President to determine, before using force, that all appropriate diplomatic and other peaceful means had been used.) Thus the Gulf War resolution would continue to authorize use of force against Iraq if such use continues to be authorized under resolution 678 of the Security Council. If Resolution 678 does not continue to authorize the United States to use force against Iraq, on the other hand, the Gulf War resolution would not authorize the President to introduce the armed forces into hostilities against Iraq, and further congressional approval would be required. This would be true, as indicated above, even if the Security Council adopts new approval to use force against Iraq, since the existing congressional authorization, the Gulf War resolution, refers only to specific Security Council measures adopted at the time of the Gulf War.
In considering this key issue, it is helpful to recall the chain of events that led to the adoption of the relevant congressional and Security Council resolutions:
On August 2, 1990, Iraq invaded and occupied the territory of Kuwait.
On August 2, 1990, the Security Council adopted the first of the eleven resolutions later set out in Congress's Gulf War resolution, quoted above. This was Resolution 660, which condemned the Iraqi invasion of Kuwait and called for an immediate and unconditional withdrawal. All eleven Security Council resolutions related to the Iraqi invasion of Kuwait and represented an effort gradually to tighten the screws before authorizing use of force.1 1 Among other things, those resolutions imposed economic sanctions on Iraq (661), found that the Iraqi annexation of Kuwait was null and void and demanded that Iraq rescind its annexation (662), demanded that Iraq permit the departure of third-country nationals and ensure their safety (664), authorized member states to halt maritime shipping to Iraq so as to inspect cargoes incident to the economic embargo (665), took steps to ensure a supply of foodstuffs to alleviate human suffering in Iraq (666), demanded the release of diplomatic personnel seized by Iraq in Kuwait (667), established a consultative mechanism to deal with special economic problems arising from the economic sanctions (669), extended limitations on aircraft destined to land in Iraq or Kuwait (670), demanded that Iraq cease and desist from taking third-country nationals hostage or otherwise mistreating them or Kuwaiti nationals (674), and condemned the Iraqi destruction of civil records maintained by the government of Kuwait (677).
On November 29, 1990, the UN Security Council adopted Resolution 678 which, among other things, authorized ``all member States to uphold and implement Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the region.'' The Resolution provided that this authority could not be exercised, however, if Iraq ``on or before January 15, 1991, fully implements ..... the above-mentioned resolutions. . .'' (The ``above mentioned resolutions'' were the same eleven measures.)
On January 14, 1991, Congress adopted the Gulf War resolution.
On January 17, 1991, the United States commenced air attacks against Iraq.
On February 24, 1991, the United States commenced the ground attack.
On February 27, 1991, Iraq in a letter to the President of the Security Council, promised to comply with the twelve Security Council resolutions.
On February 28, a cease-fire was declared.
On March 2, 1991, the Security Council adopted Resolution 686, noting the cease-fire, noting Iraq's promise to comply with the the Council's twelve resolutions, demanding that Iraq do so, and demanding that Iraq meet additional conditions spelled out in paragraphs (2) and (3). Significantly, Resolution 686 further provided that, ``during the period required for Iraq to comply with paragraphs 2 and 3 above, the provisions of paragraph 2 of resolution 678 (1990) remain valid. .....''
On April 3, 1991, the Security Council adopted Resolution 687 which demanded that Iraq destroy all weapons of mass destruction and set up a comprehensive on-site inspection regime under the aegis of the UN Special Commission on Iraq (UNSCOM). The Resolution also declared that ``upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990).''
On April 6, 1991 in a letter from its Iraqi Minister of Foreign Affairs, Iraq notified the President of the Security Council and the Secretary-General that it accepted the provisions of the Resolution 687.
In light of this background, can Resolution 678 reasonably be construed to continue to authorize use of force by the United States against Iraq? While reasonable arguments can be made on both sides,2 the more persuasive argument appears to be that it does not, for these reasons: 2 Most commentators have rejected the argument that authority to use force continues to flow from Resolution 678. See, e.g., Gray, After the Cease-Fire: Iraq, the Security Council and the Use of Force, 65 British Yearbook of International Law 135 (1994); Krisch, Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council, 3 Max Planck United Nations. Y.B. 59 (1999); Lobel & Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 American Journal of International Law 124 (1999); Tomuschat, Using Force against Iraq, 73 Die Friedens-Warte-Journal of International Peace and Organization 75 (1997); and Dekker & Wessel, Military Enforcement of Arms Control in Iraq, 11 Leiden Journal of International Law 497 (1998). But see Wedgewood, The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destruction, 92 American Journal of International Law 724 (1998).
(a) The authority conferred by Resolution 678 was narrowly circumscribed and was directed at reversing the Iraqi invasion of Kuwait. Resolution 678 conferred authority to use armed force for three different purposes. (i) The first purpose was to uphold and implement resolution 660. Resolution 660, however, simply called upon Iraq to withdraw from Kuwait that goal has been achieved. (ii) The second purpose was to uphold and implement ``all subsequent relevant resolutions'' The phrase could conceivably be construed as referring to any resolution adopted after the date on which Resolution 660 was adopted, August 2, 1990. Read in context, however, it seems more likely that the phrase refers to the nine ``foregoing resolutions'' that were recalled and reaffirmed in the first prefatory clause of Resolution 678. Those resolutions were ``subsequent to'' Resolution 660 but of course all preceded Resolution 678. ``All subsequent resolutions,'' it might further be argued, could hardly be taken as referring to any resolution ever adopted on any future date by the Security Council. Such a construction would have had the effect, internationally, divesting the Security Council of any future role in deciding whether to authorize use of force against Iraq--even though paragraph 5 of Resolution 678 explicitly affirms the intent of the Security Council ``to remain seized of the matter.'' Domestically, given the incorporation by reference of the phrase in Congress's Gulf War resolution, such as interpretation would
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have effected a massive delegation of the congressional war power to the Security Council--a delegation that would crate profound constitutional problems. These difficulties are avoided by giving the phrase ``all subsequent relevant resolutions'' the meaning that it seems plainly intended to have had, namely, as referring to resolutions subsequently to Resolution 660 but adopted before Resolution 678. (iii) The third purpose for which Resolution 678 authorized use of force was to restore international peace and security in the region. A broad interpretation of that grant of authority would view it as permitting use of force against Iraq by any state at any point in the future when that state concluded that Iraq had disrupted that region's peace and security. The authority to restore peace and security was, however, like other provisions of Resolution 678 authorizing use of force against Iraq, tied to and precipitated by the Iraqi invasion of Kuwait. Each of the twelve Security Council resolutions cited in Congress's Gulf War Resolution relates directly to that invasion. Resolution 687, declaring a ``formal cease-fire,'' appears to have represented a de facto finding by the Security Council that peace and security had been restored. It seems unlikely that the Security Council, in adopting Resolution 678, intended to declare Iraq a free-fire zone into the indefinite future.
(b) The authority to use force conferred in Resolution 678 was most likely extinguished April 6, 1991, the date the Iraqis notified the United Nations of their acceptance of the pertinent provisions of Resolution 687. Under that Resolution, ``a formal cease-fire'' took effect upon such notification. The legal obligations that flow from a formal cease-fire are incompatible with the legal rights that flow from authorization to use force. The Security Council did ``reaffirm'' Resolution 678 in Resolution 949, adopted October 15, 1994, and also in Resolution 1137, adopted November 12, 1997. However, this was done only in prefatory clauses; neither Resolution 949 nor Resolution 1137 re-authorizes the use of force against Iraq. No resolution has done so. The Security Council has never declared that either the cease-fire or Resolution 687 is no longer in effect.
(c) The authority to use force conferred in Resolution 678, once extinguished did not revive when Iraq failed to comply with its obligations under Resolution 687. Resolution 687 makes clear that the termination of that authority was conditioned upon Iraq's notification of acceptance of the pertinent provisions of Resolutions 687, not upon Iraq's compliance with those provisions. In this regard it is instructive to compare the terms of Resolution 687 with the terms of its predecessor resolution, Resolution 686. Resolution 686 implemented a provisional cease-fire following the suspension of hostilities between Iraq and the coalition forces. As noted above, Resolution 686 provides that compliance, not acceptance, by Iraq was required with respect to two paragraphs of Resolution 686 to bring about the termination of authority to use force. (It is agreed that Iraq has complied with those two paragraphs.) In contrast, Resolution 687 provides that acceptance, not compliance, was all that was required to terminate authority to use force. Had the Security Council intended to cause that authority to revive upon Iraqi non-compliance, the Council presumably would have used the same words, or similar words, that it used in the preceding resolution to bring about that result. But it did not. There is no indication in the terms of Resolution 687 or any other Security Council resolution that the Council intended that Iraqi non-compliance would trigger a revival of authority to use force.
(d) A decision to revive Resolution 678 must be made by the Security Council and cannot be made by an individual member state. As suggested by the interactive context in which the Gulf War was ended, the transaction that brought hostilities to a close was in the nature of an agreement. Its terms were set forth in Resolution 686 and 687. Those terms were agreed to and approved by Iraq and the U.N. Security Council, not by Iraq and individual member states of the Security Council, and not by Iraq and individual member states of the Gulf War coalition. An earlier, informal, battlefield cease-fire was instituted by coalition forces. But the coalition owed its presence to authority conferred by the Security Council, and the informal cease-fire was superseded by the formal termination of hostilities set out by the Security Council in Resolution 687. The parties to that formal undertaking were Iraq and the U.N. Security Council. With rare exceptions that are not applicable here, under long-settled principles of international law rights flowing from the material breach of an agreement run to the aggrieved party of the agreement; a state has no right to complain of the breach of an agreement to which it is not a party. One of the rights that flows from the power to complain of the material breach of an agreement is the option to terminate or suspend the agreement in whole or in part. In Resolution 687 the Security Council apparently intended to retain that right: paragraph 34 of Resolution 687 provides that the Council, not individual states, ``shall take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.'' Thus it would be up to the Council as a body to decide what action to take in response to a breach. Individual states such as the United States have no right to terminate or suspend those provisions of Resolution 687 that caused the authorities granted in Resolution 678 to be extinguished upon the notification of Iraqi acceptance. The option to terminate or suspend those provisions resides exclusively in the author of Resolution 678 and party to the agreement with Iraq: the Security Council, not individual member states.
(e) It would be inappropriate to infer implicit Security Council intent to revive Resolution 678 from acquiescence by the Council to subsequent military strikes against Iraq that were not expressly authorized. It can be argued that a consistent pattern of acquiescent practice would constitute evidence of the authoritative interpretation of the Resolution. However, the right of veto that inheres in the Council's five permanent members renders this argument unconvincing in these circumstances. All five members have not remained silent during each of the subsequent strikes against Iraq; several have on occasion objected. Following the 1998 air strikes on Iraq, for example, the President of the Russian Federation declared that ``[t]he U.N. Security Council resolutions on Iraq do not provide any grounds for such actions. By the use of force, the U.S. and Great Britain have flagrantly violated the U.N. Charter and universally accepted principles of international law.'' 3 The Chinese also objected.4 When Resolution 1154 was adopted, warning that continued violations of Iraq's obligations to permit unconditional access to UNSCOM ``would have the severest consequences,'' the French representative to the Security Council 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.'' 5 Even if all five permanent members of the Security Council had remained silent, silence under such circumstances does not necessarily signify consent or approval. Silence may simply indicate a belief that objection is futile. Moreover, if formal objection were now legally required, this argument would in effect establish a new procedure under which each of those five members would be required to take the affirmative step of voicing objection to acts not authorized by the Council that they did not wish to be seen as approving. The U.N. Charter itself places no such obligation on the permanent five members of the Council; to prevent the Council from acting, each is required to voice objection only to a formal proposal made by a member of the Council within the Council's proceedings, not to the external conduct of third states. In any event, even if it were appropriate to infer the Council's approval to attack Iraq from its acquiescence to other attacks on Iraq, there would be no reason to assume that the Council, in its acquiescence, intended to revive Resolution 678 rather than to create new, implicit authority. New, implicit Security Council authority would not constitute authorization under Congress's Gulf War Resolution to introduce the armed forces into hostilities against Iraq. As noted above the Gulf War Resolution permits such use of force only if it is permitted by Resolution 678. New Security Council authorization, whether given explicitly in the form of a new resolution or implicitly in the form of acquiescence, would not satisfy the terms of the Gulf War Resolution and could not, under U.S. domestic law, authorize the President to introduce the armed forces into hostilities. 3 Statement of the President of the Russian Federation, press release of the Mission of the Russian Federation to the U.N., Dec. 20, 1998.
4 Press release of the Foreign Ministry of China, Dec. 17, 1998 (``The unilateral use of force ..... without the authorization of the Security Council runs counter to the U.N. Charter and the principles of international law.')
5 U.N. Doc. S/PV.3858, at 15, 18 (1998).
(f) The War Powers Resolution requires that doubts flowing from ambiguous or unclear measures be resolved against finding authority to use force; at a minimum, these considerations raise such doubts. As discussed above, section 8(a)(1) of the War Powers Resolution requires that Congress ``specifically authorize'' the introduction of the armed forces into hostilities if its enactment is to suffice as statutory approval. The War Powers Resolution, in other words, requires that doubts flowing from ambiguous or unclear measures be resolved against finding authority to use force. Because serious doubt exists whether Security Council Resolution 678 confers continuing authority on the United States to use force against Iraq,6 the Gulf War Resolution, which incorporates Security Council Resolution 678 by reference, cannot be said to constitute specific statutory authorization within the meaning of the War Powers Resolution to introduce the armed forces into hostilities against Iraq. 6 Because your letter requests my views concerning the application of U.S. domestic law, I do not here discuss whether international law would permit use of force against Iraq absent Security Council approval.
For these reasons, I conclude that the Gulf War authorization is most reasonably construed as conferring no such authority.
2. S.J. Res. 23
The second statute that meets these conditions is the law enacted by Congress and signed by the President on September 18, 2002, P.L. 107-40, also known as Senate Joint Resolution 23 or S.J. Res. 23.
The statute contains five whereas clauses. Under traditional principles of statutory
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construction these provisions have no binding legal effect. Only material that comes after the so-called ``resolving clause''-- Resolved by the Senate and House of Representatives of the United States of America in Congress assembled''--can have any operative effect. Material set out in a whereas clause is purely precatory. Such material may be relevant for the purpose of clarifying ambiguities in a statute's legally operative terms, but in and of itself such a provision can confer no legal right or obligation.
To determine the breadth of authority conferred upon the President by this statute, therefore, it is necessary to examine the legally operative provisions, which are set forth in section 2(a) thereof. That section provides as follows: ``In General.--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.'' The central conclusion that emerges from these words (which represent the only substantive provision of this statute) is that all authority that the statute confers is tightly linked to the events of September 11. The statute confers no authority unrelated to those events. The statue authorizes the President to act only against entities that planned, authorized committed, or aided the terrorist attacks that occurred on September 11. 2002. No authority is provided to act against entities that were not involved in those attacks. The closing reference limits rather than expands the authority granted, by specifying the purpose for which that authority must be exercised--``to prevent any future acts of international terrorism against the United States.......'' No authority is conferred to act for any other purpose or to act against ``nations, organizations or persons'' generally. Action is permitted only against ``such'' nations, organizations or persons, to wit, those involved in the September 11 attacks.
The statute thus cannot serve as a source of authority to use force in prosecuting the war on terrorism against entities other than those involved in the September 11 attacks. To justify use of force under this statute, some nexus must be established between the entity against which action is taken and the September 11 attacks.
The requirement of nexus between the September 11 attacks and the target of any force is reinforced by the statute's legislative history. Unfortunately, because of the truncated procedure by which the statute was enacted, no official legislative history can be compiled that might detail what changes were made in the statute and why. It has been reported unofficially however, that the Administration initially sought the enactment legislation which would have set out broad authority to act against targets not linked to the September 11 attacks. The statute proposed by the Administration reportedly would have provided independent authority for the President to ``deter and preempt any future acts of terrorism or aggression against the United States.'' 7 Members of Congress from both parties, however, reportedly objected to this provision.8 The provision was therefore dropped from the operative part of the statute and added as a final whereas clause, where it remained upon enactment. You outlined this history in your remarks on the Senate floor on October 1, 2001 (Cong. Rec., daily ed., Oct. 1, 2001 at S9949). 7 Helen Dewar & Juliet Eilperin, Emergency Funding Deal Reached; Hill Leaders Agree to Work Out Language on Use of Force, Wash. Post, Sept. 14, 2001 at A30.
8 Helen Dewar & John Lancaster, Congress Clears Use of Force, Aid Package; $40 Billion--Double Bush's Request-- Earmarked for Rebuilding. Terror Response, Wash. Post, Sept. 16, 2001 at A11.
Accordingly, unless Iraq participated in the events of September 11, authority for use of force against Iraq must derive from a source other than S.J. Res. 23. Only one possible source remains: the United States Constitution. If use of force by the President is authorized by the Constitution, no authority is needed from any treaty or statute.
C. Constitutional authorization
A starting point in considering the scope of the President's independent constitutional powers is to note a proposition on which commentators from all points on the spectrum have agreed: that the President was possessed of independent constitutional power to use force in response to the September 11 attacks upon the United States. As was widely observed at the time, the War Powers Resolution itself supports this conclusion. Its statement of congressional opinion concerning the breadth of independent presidential power under the Constitution (section 2(c)(3)) recognizes the President's power to use force without statutory authorization in the event of ``a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.'' Thus, U.S. military operations in Afghanistan could have been carried out under the President's constitutional authority, even if S.J. Res. 23 had never been enacted. This conclusion has important implications for the question you have posed. If it turns out that Iraq is linked to the September 11 attacks, S.J. Res. 23 will continue to suffice, along with the President's constitutional authority, to provide all necessary authorization.
A more difficult question arises if Iraq was not connected with the September 11 attacks. In the last 30 years, Congress has on two occasions expressed its opinion concerning the scope of the President's power to use armed force without prior congressional approval the issue. One statement of opinion, as I mentioned, is set forth in section 2(c)(3) of the War Powers Resolution. I've also alluded to the other statement: the final whereas clause in S.J. Res. 23. That whereas clause expresses the opinion of Congress that ``the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.'' Obviously, these two statements are inconsistent. The scope of presidential power to wage war that was recognized by Congress in the War Powers Resolution is much narrower than that recognized in S.J. Res. 23. If the President only has power to act alone in ``a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,'' then he obviously is without power to ``to take action to deter and prevent acts of international terrorism against the United States'' where no attack upon the United States has occurred. Which statement is correct?
In my view, neither. The statement in the War Powers Resolution is overly narrow, and the statement in S.J. Res. 23 is overly broad. The original, Senate-passed version of the War Powers Resolution contained wording, which was dropped in conference, that came close to capturing accurately the scope of the President's independent constitutional power. It provided--in legally binding, not precatory, terms--that the President may use force ``to repel an armed attack upon the United States, its territories or possessions; to take necessary and appropriate retaliatory actions in the event of such an attack; and to forestall the direct and imminent threat of such an attack.'' This formula, unlike the hastily-crafted words of the S.J. Res. 23 whereas clause, was drafted over a period of years, with numerous hearings and advice from the top constitutional scholars in the country. It was supported by Senators Fulbright, Symington, Mansfield, Church, Cooper, Eagleton, Muskie, Stennis, Aiken, Javits, Case, Percy, Hatfield, Mathias, Scott and yourself--not an inconsequential group. They agreed upon a simple premise: that the war power is shared between Congress and the President.
This is the premise that animates all efforts by members of Congress who seek to have the Executive meet authorization and consultation requirements. This is the premise that is, for all practical intents and purposes, rejected by proponents of sole executive power.
The premise flows from each source of constitutional power:
.The constitutional text. Textual grants of war power to the President are paltry in relation to grants of that power to the Congress. The president is denominated ``commander-in-chief.'' In contrast, Congress is given power to ``declare war,'' to lay and collect taxes ``to provide for a common defense,'' to ``raise and support armies,'' to ``provide and maintain a navy,'' to ``provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions,'' to provide for organizing, arming, and disciplining, the militia,'' and to `'make all laws necessary and proper for carrying into execution...all...powers vested by this Constitution in the Government of the United States.''
The case law. Support for the Executive derives primarily from unrelated dicta pulled acontextually from inapposite cases, such as United States v. Curtiss-Wright (1936). The actual record is striking: Congress has never lost a war powers dispute with the President before the Supreme Court. While the cases are few, in every instance where the issue of decision-making primacy has arisen--from Little v. Barreme (1804) to the Steel Seizure Case (1952)--the Court has sided with Congress.
Custom. It is true that Presidents have used armed force abroad over 200 times throughout U.S. history. It is also true that practice can affect the Constitution's meaning and allocation of power. The President's power to recognize foreign governments, for example, like the Senate's power to condition its consent to treaties, derives largely from unquestioned practice tracing to the earliest days of the republic. But not all practice is of constitutional moment. A practice of constitutional dimension must be regarded by both political branches as a juridical norm, the incidents comprising the practice must be accepted, or at least acquiesced in, by the other branch. In many of the precedents cited, Congress objected. Furthermore, the precedents must be on point. Here, many are not. Nearly all involved fights with pirates, clashes with cattle rustlers, trivial naval engagements and other minor uses of force not directed at significant adversaries, or risking substantial casualties or large-scale hostilities over a prolonged duration. In a number of the ``precedents,'' Congress actually approved of the executive's action by enacting authorizing legislation (as with the Barbary Wars).
Structure and function. If any useful principle derives from structural and functional considerations, it is that the Constitution gives the Executive primacy in emergency war powers crises, where Congress has no time to act, and that in non-emergency situations--circumstances where deliberative
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legislative functions have time to play out--congressional approval is required.
Intent of the Framers. Individual quotations can be, and regularly are, drawn out of context and assumed to represent a factitious collective intent. It is difficult to read the primary sources, however, without drawing the same conclusion drawn by Abraham Lincoln. He said: ``The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.'' Chief Justice William Rehnquist, quoting Justice Robert Jackson in Dames & Moore v. Regan (1981), shared Lincoln's belief that the Framers' rejected the English model. He said: ``The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.''
Notwithstanding the plain import of these sources of constitutional power, some argue that the only role for Congress occurs after the fact--in cutting off funds if the president commences a war that Congress does not support. Two problems inhere in this theory. First, it reads the declaration-of-war clause out of the Constitution as a separate and independent check on presidential power. The Framers intended to give Congress control over waging war before the decision to go to war is made. Giving Congress a role only after the fact, however, would make its power to declare war nothing but a mere congressional trumpet to herald a decision made elsewhere.
Second, the theory flies in the face of the Framers' manifest intention to make it more difficult to get into war than out of it. This approach would do the opposite. If the only congressional option is to wait for the president to begin a war that Congress does not wish the nation to fight and then cut off funds, war can be instituted routinely with no congressional approval--and seldom if ever ended quickly. The practical method of cutting off funds is to attach a rider to the Department of Defense authorization or appropriation legislation. This means, necessarily, passing the legislation by a two-thirds vote so as to overcome the inevitable presidential veto. The alternative is for Congress to withhold funding altogether--and be blamed by the president for closing down not merely the Pentagon but perhaps the entire federal government. The short of it is, therefore, that to view the congressional appropriations power as the only constitutional check on presidential war power is for all practical purposes to eliminate the declaration-of-war clause as a constitutional restraint on the president.
For reasons such as these, the Office of Legal Counsel of the Justice Department concluded in 1980 that the core provision of the War Powers Resolution--the 60-day time limit--is constitutional. It said: ``We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of ``unavoidable military necessity.'' This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers.
``We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of ``unavoidable military necessity.'' This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers.
``Finally, Congress can regulate the President's exercise of his inherent powers by imposing limits by statute.'' 9 9 Presidential Power to Use the Armed Forces Abroad without Statutory Authorization, 4A, Op. Office of the Legal Counsel, Dept of Justice 185, 196 (1980).
Finally, it is worth recalling that much the same issue arose prior to the outset of the Gulf War. The President, executive branch lawyers maintained, was constitutionally empowered to place the United States at war against Iraq without congressional approval. A number of Members of Congress brought an action seeking an injunction to prevent him from initiating an offensive attack against Iraq without first securing a declaration of war or some other explicit congressional authorization. The action was dismissed by a federal district court as not yet ripe for review. In the course of doing so, however, the court made the following pithy but important observation, which seems directly pertinent to events unfolding today: ``If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an ``interpretation'' would evade the plain language of the constitution, and it cannot stand: 10\10 Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).
To the extent that use of force against Iraq to remove Saddam Hussein from power would risk substantial casualties or large- scale hostilities over a prolonged duration, I therefore conclude that prior congressional approval would be required.
Sincerely,
MICHAEL J. GLENNON, Professor of International Law.
Ms. STABENOW. Will my friend from West Virginia yield for a moment?
Mr. BYRD. Yes, I would be happy to.
Ms. STABENOW. Before the Senator concludes this evening, I wanted to thank him, as a new Member to this body, for his incredible commitment to our Constitution, our country, and our people. It has been an inspirational time for me to watch the Senator from West Virginia on the floor, listen to his arguments, and see his dedication. I have been proud to stand with him in opposing this resolution.
I ask unanimous consent that a New York Times op-ed written today by the distinguished Senator from West Virginia be printed in the RECORD. It is an excellent summary of the concerns that many of us have in rushing into this war, and I want to thank the Senator for that. I think it is important this be in the RECORD of the Senate as a part of this debate today.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
[From the New York Times, Oct. 10, 2002]
Congress Must Resist the Rush to War
(By Robert C. Byrd)
A sudden appetite for war with Iraq seems to have consumed the Bush administration and Congress. The debate that began in the Senate last week is centered not on the fundamental and monumental questions of whether and why the United States should go to war with Iraq, but rather on the mechanics of how best to wordsmith the president's use-of-force resolution in order to give him virtually unchecked authority to commit the nation's military to an unprovoked attack on a sovereign nation.
How have we gotten to this low point in the history of Congress? Are we too feeble to resist the demands of a president who is determined to bend the collective will of Congress to his will--a president who is changing the conventional understanding of the term ``self-defense''? And why are we allowing the executive to rush our decision-making right before an election? Congress, under pressure from the executive branch, should not hand away its Constitutional powers. We should not hamstring future Congresses by casting such a shortsighted vote. We owe our country a due deliberation.
I have listened closely to the president. I have questioned the members of his war cabinet. I have searched for that single piece of evidence that would convince me that the president must have in his hands, before the month is out, open-ended Congressional authorization to deliver an unprovoked attack on Iraq. I remain unconvinced. The president's case for an unprovoked attack is circumstantial at best. Saddam Hussein is a threat, but the threat is not so great that we must be stampeded to provide such authority to this president just weeks before an election.
Why are we being hounded into action on a resolution that turns over to President Bush the Congress's Constitutional power to declare war? This resolution would authorize the president to use the military forces of this nation wherever, whenever and however he determines, and for as long as he determines, if he can somehow make a connection to Iraq. It is a blank check for the president to take whatever action he feels ``is necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.'' This broad resolution underwrites, promotes and endorses the unprecedented Bush doctrine of preventive war and pre-emptive strikes--detailed in a recent publication, ``National Security Strategy of the United States''--against any nation that the president, and the president alone, determines to be a threat.
We are at the graves of moments. Members of Congress must not simply walk away from their Constitutional responsibilities. We are the directly elected representatives of the American people, and the American people expect us to carry out our duty, not simply hand it off to this or any other president. To do so would be to fail the people we represent and to fall woefully short of our sworn oath to support and defend the Constitution.
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We may not always be able to avoid war, particularly if it is thrust upon us, but Congress must not attempt to give away the authority to determine when war is to be declared We must not allow any president to unleash the dogs of war at his own discretion and or an unlimited period of time.
Yet that is what we are being asked to do. The judgment of history will not be kind to us if we take this step.
Members of Congress should take time out and go home to listen to their constituents. We must not yield to this absurd pressure to act now, 27 days before an election that we will determine the entire membership of the House of Representatives and that of a third of the Senate. Congress should take the time to hear from the American people, to answer their remaining questions, and to put the frenzy of ballot-box politics behind us before we vote. We should hear them well, because while it is Congress that casts the vote, it is the American people who will pay for a war with the lives of their sons and daughters.
Mr. SARBANES. Will the Senator yield?
Mr. BYRD. Mr. President, let me first thank the Senator from Michigan, DEBBIE STABENOW, for her eloquence, for her steadfast determination to stand by the Constitution as she has shown so many days, so many times in recent days. I thank her for being the Senator she is, a Senator who is indebted to her people and stands every day somewhere in this Senate complex working for the people she represents. I have received great inspiration from watching her. I serve on the Budget Committee with her and she is an outstanding voice for the people who believe in the Constitution, who takes a stand and is so eloquent, so articulate on behalf of that Constitution.
I thank the Senator from Michigan from the bottom of my heart.
I am about to yield the floor.
Mr. SARBANES. Will the Senator yield for a moment?
Mr. BYRD. Yes.
Mr. SARBANES. Mr. President, I join my colleague from Michigan in expressing my deep thanks to the Senator from West Virginia for his extraordinarily effective and powerful presentations in the course of this debate. I was also planning to put this article in, as my colleague has already done.
It is a very powerful statement that appeared in this morning's New York Times entitled ``Congress Must Resist the Rush to War.'' The Senator from West Virginia, as he always does, asks some very piercing questions and calls the Congress to its responsibilities.
Let me quote a paragraph or two from the article:
This broad resolution underwrites, promotes and endorses the unprecedented Bush doctrine of preventive war and pre-emptive strikes--detailed in a recent publication, ``National Security Strategy of the United States''--against any nation that the president, and the president alone, determines to be a threat.
Of course, the particular resolution that is before the Senate, as is pointed out in this article, and I quote the Senator from West Virginia:
This resolution would authorize the president to use the military forces of this nation wherever, whenever, and however he determines, and for as long as he determines if he can somehow make a connection to Iraq.
And there actually were other proposals to narrow that authority, but of course none of them carried.
Further quoting:
It is a blank check for the president to take whatever action he feels ``is necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.''
I say to my colleague from West Virginia, it seems to me clear that upon approval of this resolution, as far as the Congress is concerned, war has been declared against Iraq. Would the Senator agree with that observation?
Mr. BYRD. I do, I do. And I say further to my dear friend that as soon as this resolution is adopted and signed by the President of the United States, Congress is out of it. It is on the sidelines. We may wish we could say something. We may wish we could do something. But as far as the human eye can see, we are out of it until such time as Congress asks to repeal this legislation or to put a limit on it internally.
Mr. SARBANES. Let me ask my colleague this question: Suppose some unforeseen, extraordinary development should take place after this resolution is passed and sent down and signed by the President which transforms perhaps the weapons of mass destruction situation. The President, though, could still move ahead and go to war, could he not?
Mr. BYRD. Yes.
Mr. SARBANES. They would have been given the authority to do that; would that be correct?
Mr. BYRD. Absolutely. We would have handed this over to the President--lock, stock, and barrel. Here it is.
Mr. SARBANES. When would the President have to decide whether he was going to use this authority? Let's assume with respect to passing it later in the evening--although I will oppose it--assuming it is passed and the Congress authorizes the President to go to war, in effect, with Iraq, is there a limit on the time period in which the President could then use that power to launch war against Iraq?
Mr. BYRD. There is no limit.
I offered an amendment, and the distinguished Senator from Maryland supported that amendment today, as the distinguished Senator from Minnesota supported it, the distinguished Senator from Michigan, the distinguished Senator from New York, but we only got 31 votes. That amendment was defeated.
Mr. SARBANES. That underscores what the distinguished Senator says in this op-ed piece that appeared in this morning's New York Times. I quote:
We may not always be able to avoid war, particularly if it is thrust upon us, but Congress must not attempt to give away the authority to determine when war is to be declared. We must not allow any president to unleash the dogs of war at his own discretion and for an unlimited period of time.
Yet that is what we are being asked to do [in the resolution before the Senate].
Mr. BYRD. Yes.
Mr. SARBANES. This, of course, is a decision with far-sweeping consequences, certainly as it deals with Iraq and all of its implication. But the precedent is being established in terms of the future, it seems to me, and that constitutes a major erosion of the role of the Congress with respect to the Nation going to war.
Mr. BYRD. It does. And it is easy enough, I suppose, to pass this resolution. But should we try to negate it, should we try to repeal it, should we try to change the law, a President can veto any change that Congress might bring along later, any change it might enact, in order to overturn this law it is now about to adopt.
Mr. SARBANES. I am glad the distinguished Senator made that point because that is the next item I wanted to go to. People could say: If the circumstances changed and the Congress wants to pull it back, why not come in, pass a law, and pull it back? But the fact is that a President who wanted to keep that authority and may well want to use it, as long as he could keep the support of one-third--not of each House of the Congress but only one-third of one House, either a third of the Senators, plus one, or a third of the Members of the House of Representatives--he could negate congressional action that tried to pull back this war- making authority, could he not?
Mr. BYRD. The distinguished Senator from Maryland is absolutely correct. It only takes a majority of both Houses to pass this resolution, but it would take two-thirds in the future if the President should attempt to veto a substitute piece of legislation by this Congress to abort what we are doing here today, to appeal it, to amend it. One-third plus one in either body could uphold the President's veto, and that legislation would not become law.
Mr. SARBANES. I think that is a point we have not really touched on much in this debate, but I think it is an extremely important point.
What has happened--you pass this resolution, you make a major grant of war-making authority to the President, but then if subsequently you decide it ought to be pulled back or ought not be exercised by the President, it is extraordinarily difficult to do that, so not only have you given the President this broad power to begin with, but the way the system is constructed, he can hold on to that power, even if a majority of both Houses of the Congress which gave the power want to take it back. Is that not correct?
Mr. BYRD. The Senator could not be more correct. The Senator is absolutely correct.
Mr. SARBANES. It is worth engaging in this discussion just to underscore the sweep of authority that is being provided.
Again, I thank my colleague for his leadership on this issue and especially commend him for what I thought was a very thoughtful and powerful article. I
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encourage people across the country to read this article. It is a very succinct, analytical, and perceptive statement of the issues that are at stake.
Mr. BYRD. Mr. President, I thank the distinguished Senator from Maryland. He is a great Senator. I am proud of the years I have served with him. We have gone through some interesting times here in the Senate. We stood beside one another, shoulder to shoulder, shoulder to shoulder in fighting for this Constitution on several occasions--the line-item veto, constitutional amendment to balance the budget, and on other occasions.
I thank the people of Maryland for sending him and for keeping him here.
I would say that the Republic will long live, as long as the people of America send Senators here like PAUL SARBANES.
I thank the people of Maryland, and I thank God for him.
Mr. President, I am about to yield the floor. I have been asked by the distinguished Senator from New York to yield to her. How much time do I have?
The PRESIDING OFFICER (Mr. JEFFORDS). The Senator has 42 minutes.
Mr. BYRD. Mr. President, I do not intend to hold the floor much longer. How much time will the Senator from New York, Mrs. Clinton, wish me to yield to her?
Mrs. CLINTON. Twenty minutes.
Mr. BYRD. Mr. President, I yield 20 minutes to the Senator, and I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mr. McCAIN. Will the Senator from New York just yield for a second to me?
Mr. BYRD. And I yield to the distinguished Senator whatever time he needs.
Mr. McCAIN. I point out the distinguished chairman of the Foreign Relations Committee has not had an opportunity to speak. In all due respect, I would like to give the chairman of the Foreign Relations Committee the respect he deserves.
Mr. BIDEN. I thank the Senator. I am delighted to wait in line, and I will wait until after the Senator has finished.
Mr. BYRD. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. Forty-one minutes.
Mr. BYRD. I yield 20 minutes to the Senator from New York, Mrs. Clinton, and I yield 20 minutes, leaving myself 1 minute, to the Senator from Delaware, Mr. Biden.
I thank the distinguished Senator from Arizona for reminding me the Senator from Delaware had been waiting very patiently.
I thank all Senators.
