Hearing of the International Organizations, Human Rights , and Oversight Subcommittee of the House Foreign Affairs Committee - War Powers for the 21st Century: The Constitutional Perspective

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Hearing of the International Organizations, Human Rights , and Oversight Subcommittee of the House Foreign Affairs Committee - War Powers for the 21st Century: The Constitutional Perspective

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REP. SHEILA JACKSON LEE (D-TX): Let me say to the witnesses, and I thank the chairman for his bestowing of the chair, for fear of having you immediately go out and write a legislative response to persons taking the chair at quarter to six on a Thursday, I will be pointed and try to be brief.

But the discussion is of such a moment. I serve with my colleague Chairman Delahunt on the Judiciary Committee. And Mr. Fein knows that we spent some time dealing with an impeachment process some years back in 1990s. And some of you might like to know that I serve in the 18th Congressional District, and the Honorable Barbara Jordan had her task some years back for an impeachment. I don't know what that says about certain districts in Texas.

But I think I'd like to refer some of you to legislation that I wrote that is more directly focused on the Iraq war, H.R. 4020. And I'd like to just query a little bit more and maybe give some thoughts about the distinctions between the era of our Founding Fathers and where we are today. I think it is an obvious. Founding Fathers who had imprinted in their minds because it was current and recent the persecution, oppression of a monarchy. And so they were very keen to write the Constitution in a way that, for them and I think well, had protection but also, in essence, legislative language that really pointed to the fact that they wanted three branches of government. They wanted the checks and balances.

But I think as we look at the Constitutional Convention, we were looking at 13 colonies, we were looking at a smaller sense. And I don't want to label my colleagues, but as we have grown, there are certain, I think, elements, and I would welcome you speaking to these, that really impact on Mr. Williamson's theory, this whole question of cutting off the funds. There is something called mob rule. There is something called adhering to your party leadership. These are practical and not constitutional themes, but they do have some impact when you're talking about 435 members and 100 senators.

Why didn't we get it in the fall of 2002? Why did we not pierce the veil of information? There were rotating groups of members that went to the White House. You will hear them individually explain to you that there was a scheme of horrors that probably would have convinced any number of people that we were being threatened. That's a different framework from what Madison was in. He didn't deal with the numbers. He didn't deal with this entrenched party loyalty. And I don't discount it, it has its wonderful purposes, even though it bears on the parliamentary approach.

And then the other point of it is America is proud of the fact that we are the oldest democracy. There is a sense of concern of tampering with anything that would roll that over -- Constitution, the war powers. So this resolution, and forgive me, speaks only to Iraq.

And Mr. Glennon, it goes through what you cited on page 14 where you suggest that we've literally gone through the task that was given in the fall of 2002. And in actuality, my legislation says all this has been achieved. And I think I'm going to amend it to say, and therefore, the authorization has expired. But it suggests that we can claim a military success. That's a policy question because all of the elements of the military haven't been accomplished.

When I listen to Mr. Williamson, I want him to know how many times we have raised the question of appropriation. But this is not Madison's era, this is our era. This means that the politics of undermining the military, putting the boys and girls out to wash, if you will, the young men and women is an overwhelming, powerful influence that the executive has to, if you will, chill any mass attempts to cut the funds. It was done, attempted in Vietnam. I don't think we've been successful since. There is something about the largeness of this body.

So I would ask -- I know if I could start, Mr. Glennon, first. To claim a military success, obviously, is a policy question. But if you would sort of go through briefly what your argument was specifically on page 14.

And then I would ask my cerebral colleagues and panelists to comment on this sort of -- what a terrible term to use -- but the largeness of the body that thwarts what Chairman Delahunt was talking about, this important oversight, this single-mindedness, this ability to effectively challenge this other branch of government which is supposed to be equal, and that is the executive. And are we at a point in the constitutional life of America, its age, its size, where this whole question of equal branches of government is, in essence, being diminished?

And let me just say this one point before I ask the question. You look at the signing statements that have seemed to be getting totally out of control in terms of at least this administration. That is an extended use of power that has been used. You look at the bully pulpit that now has a much larger range than I think it has ever had. And that causes some branches to shrink, maybe not the judiciary but it's (whatever ?) we can get there to get any kind of relief, particularly, I must say, on these questions. It would be interesting whether the Supreme Court would go with us, whether there is some partisanship there.

So is it the largeness of this government that warrants an H.R. 4020 or an H.J. Res. 53 because we are now moving away from what the Constitutional Fathers wanted us to be engaged in.

And I'll start with Mr. Glennon, please.

MR. GLENNON: Madame Chairman, before I answer your specific question, let me just say that I find your comment fascinating because this is about the first time I've heard a member of Congress ask of the member's institution, Congress, what went wrong. What are the lessons we should have learned about how we got into this mess? What happened that we approved this?

You know, we had a commission that looked at the executive branch, the Baker-Hamilton commission. But Congress has yet to look at itself with --

REP. JACKSON LEE: A fine-tooth comb.

MR. GLENNON: -- fine-tooth comb and a bright light to try to figure out what was it in the congressional process that led to this tragic mistake. And frankly, I think you're really onto something here.

And we had a little review of retrospective with respect to the Vietnam War. The Senate Foreign Relations Committee held hearings on the National Commitments Resolution and had issued a report which is a classic that made some suggestions about how to avoid another Vietnam, most of which were ignored in the case of Iraq. But I really think that a committee such as the House Foreign Affairs Committee would spend some productive time looking at precisely the question that you've just raised because I don't think any committee on either side of Capitol Hill has done that.

Now, you've asked me an important question, and I appreciate it. And it is to elaborate my conclusion that the war in Iraq is unauthorized currently. And my answer is that none of the sources of authority cited by the administration provides authority to fight the war in Iraq today, not after December 31st but today. And I'm going to go down those sources of authority and answer your question specifically.

The first source that they cite is the president's commander in chief clause. That source of power, however, is, as the Supreme Court made clear in three early cases -- Little against Barreme, Bass against Tingy and Talbot against Seeman. A function of what Congress has said, and specifically the court underscored in these three cases decided by the Marshall court, these are the first three war powers cases ever decided. They'd never been overruled. These cases stand for the proposition that when Congress authorizes limited war, as it did then and did now in the case of Iraq, when Congress authorizes limited war, the president is constitutionally required to respect those limits. The president cannot constitutionally rely upon his commander in chief clause as a source of authority to use force beyond those limits.

REP. JACKSON LEE: When we instruct him, then he must be guided by that instruction.

MR. GLENNON: That is precisely the --

REP. JACKSON LEE: He seeks an amendment to that instruction.

MR. GLENNON: -- precisely the holding of those three cases.

Now, the second point is that in the 2002 joint resolution, that is exactly what Congress did. It gave the president instructions. It authorized, quote, "imperfect war." It provided authority for the president to use force subject to two limits. The two limits are set forth in that resolution. The president's authorized to use force against the continuing threat posed by Iraq; and second, to enforce all relevant Security Council resolutions.

Now, Madame Chairman, the first condition has been fulfilled.

REP. JACKSON LEE: Absolutely.

MR. GLENNON: The continuing threat posed by Iraq was thought by Congress to be present in the Iraqi government, specifically in the person of Saddam Hussein and his alleged possession of weapons of mass destruction. Saddam Hussein is history. That Iraqi government is gone. There is no threat today that has continued from before the invasion against which the United States is using force. The threat is not posed by Iraq. Of course, there are terrorists in Iraq, people shooting at our forces. There is a threat within Iraq, it's not posed by the government of Iraq.

Now second, relevant Security Council resolutions, the administration says, means not only resolutions that were in effect at the time but future resolutions that had not yet been proposed yet alone voted upon in the Security Council. And let me just say, number one, any fair-minded reading of the legislative history will cause one to conclude that that is simply wrong. What Congress had in mind in enacting this was --

REP. JACKSON LEE: Inspect to the resolutions that they had passed at that time.

MR. GLENNON: Precisely. And the word that was used by the House sponsor, Congressman Richard Gephardt, was outstanding resolutions, resolutions that were already enforced. If you interpret the 2002 law as applying to future resolutions of the Security Council, three very serious constitutional problems are created.

Number one, under the delegation doctrine, you have, in effect, as Lou suggested a moment ago, delegated the war-making power that is assigned by the Constitution to the houses of Congress to the United Nations Security Council indefinitely into the future.

Second, you are permitting individuals who have not been appointed pursuant to the constitutionally required process to exercise significant governmental power in violation of the appointments clause.

And third, there's a (chatta ?) problem. As you know, the Supreme Court said in 1983 that if Congress wants to give something the force and effect of law, it has got to be presented to the president for his signature or veto. A U.N. Security Council resolution is not.

Now, these are all issues on which reasonable people can differ. However -- and President Bush has cited this canon of constitutional construction repeatedly in signing statements -- where there are two interpretations of a statute available and one of those interpretations raises constitutional problems and the other doesn't, the interpretation that does not raise constitutional problems is to be preferred. The interpretation of this statute that does not raise constitutional problems is an interpretation that it applied, as Congressman Gephardt said, to outstanding resolutions, not to future Security Council resolutions.

REP. JACKSON LEE: So do we need to -- and let me open it up to everyone. And thank you for that. And you know, where is our failure? And I'm going to focus on the Iraq war because it's wrapped into H. Res. 53 as going forward. It will not answer the question of where we are today.

And Dr. Fisher, I'll come right to you. You know, you wonder why we just don't relegate ourselves to utilizing -- we have the War Powers Resolution creatively -- but why we didn't relegate ourselves to just saying, we're sticking with Article 1 Section 8 of the Constitution, Congress is the only one that can declare war, and you have to wait on us.

Why don't I just go down, Dr. Fisher, and then everyone can sort of comment. Let me, in deference to clearing the record, I have not called the members of this esteemed body a mob. What I've said is is that, as I've clarified, I used the term, but we have grown in size. And there is a sense of the political side of the coin that so goes the group, so goes everyone. Does that now bear upon a necessity of finding other vehicles to ensure that there is transparency and that we do make the right decisions on clear facts?

Dr. Fisher.

MR. FISHER: Yeah, I like the way you started out your remarks about the 13 colonies. Because when we broke from England, I don't think the United States has ever been as vulnerable as it was then. We had an enemy in Britain. We had an enemy coming pretty soon with France. We had Spain here. And if there was ever a time in our history where we would say we were so at risk that we need to expand presidential power, it was then, and we didn't do that. We put our faith and our trust in the regular deliberative process.

And 435 in the House today is a lot, but a lot of people thought 65 in the House in 1789 that that was unwieldy. Sixty-five -- how can you do it? I think part of the answer that you're looking for has to do with the word fears. That once you have an outside, quote, "enemy" -- it was France fairly soon with the French Revolution, we were afraid that was coming here or with the communist period or now with al Qaeda -- you have a very powerful force to shut members of Congress up.

And just to come up to October 2002, the Republicans controlled the House, the Democrats controlled the Senate. The Senate could have said, you haven't given us enough information that's reliable. And what we're going to do is what the first Bush did, namely we're going to wait -- in 1990 -- until after the election to come to Congress. This is what happened.

In October 2002, the Senate had the power as the Democrats to say, we are not going to take a vote now. We're going to have U.N. inspectors go in so we can get something we can rely on. And then after the election, we will consider what to do. But the fear was such that the Democrats, as you know, were afraid that they were weak on national defense. And I think the Framers sort of all understood that these are human beings, and human beings have to decide what's more worth fear, the outside enemy or what we do to try to settle it.

And I think our history in the United States is that we do much more damage to ourselves, to each other than any enemy outside could do. But fear is a very, very powerful force.

REP. JACKSON LEE: Yes -- thank you.

MR. LOBEL: I concur with Mike Glennon.

REP. JACKSON LEE: You were suggesting that the resolutions like H. Res. 53 are necessary.

MR. FISHER: I think, yes, it is, yes.

MR. LOBEL: I think I concur with Mike Glennon that the question you've raised about why Congress failed here is a critical one, which it would really behoove this committee to investigate further. My own thoughts on that are thoughts with what Bruce Fein said, which is that the whole constitutional framework was geared towards peace, it was geared to promoting peace and making it difficult for us to go to war.

And I think if you look at what has changed, that in 1787 we were a weak country, threatened much more than we are today by outside powers who were on our borders, who could destroy us. And therefore, the Framers said, we have to be very wary --

REP. JACKSON LEE: Studied -- you have to be studied.

MR. LOBEL: Studied, wary, cautious about going to war against other countries because we don't want to involve ourselves in these European wars. We could lose our whole republic.

Today, the situation is very different. And I think if you look at both the Vietnam War and the more recent Iraq war, what has happened is that particularly members of Congress but from both sides really feel an arrogance of power. We are the greatest superpower, we have the military might to smash little Vietnam. We have the military might to roll over Saddam Hussein in Iraq. And I think in that context, the notion that we should really be cautious before we do that is not given serious attention.

And that, you know, members of Congress that say, well, all right, if they really thought that we'd get into a war with Iraq and it would lead to our republic being really threatened, they would consider it much more seriously. But if they think, well, what's Iraq going to do against our military might? Go into Iraq, go into Vietnam. I think what we've learned from Iraq and what we should have learned from Vietnam is that this great might leads us into terrible disasters and terrible messes.

And in that context, I do think Bruce Fein's view of looking at the Roman Empire is a good one. But I think it's that culture, the arrogance of power, which has to be really challenged both in Congress and in the presidency.

MR. FEIN: If I could go back, Ms. Chairman, to your opening comments about whether circumstances have changed, that the initial understanding of the Founders with regard to the allocation of power over war between Congress and the executive ought to be altered. It seems to me that the case in 1787 is much stronger today. And I just want to point out, in 1787, they were reluctant to endow a president with authority to initiate war even though it was George Washington. And indeed, James Madison pointed out when he was arguing against executive power to conduct war, in an allusion, describes Washington as a prodigy who comes around every century or two, and we can't have a Constitution based upon that allusion that we will have a majesty who is a virtual saint.

But if you go and ask what it was that the Founding Fathers feared about the executive use of power in combat that would cause recklessness, they are a million fold greater today than in 1787. And that's what Professor Lobel was referring about. What was there? You couldn't be the superpower of the world. We didn't have huge armies and navies. What kind of fame can you get by conquering a little island, you know, in maybe New Foundland or something?

Today, when we have all of that authority, it's a temptation that Madison worried would be irresistible. Fame, glory, you can go abroad, have men and women die, not in huge numbers but enough to give you some little mark in the annals of history.

REP. JACKSON LEE: To build a fear that others have of you.

MR. FEIN: Right, exactly. And this is not unique to the United States. When Great Britain was running wars -- the First Afghan War, the Second Afghan War, the Boer War, why was that? And if you go in and listen to their explanations, well, we have to be powerful, we have to make other people fear us because we don't want to have to use force everywhere. And so the British suffered that same arrogance, if you will, of power. And where are they today?

And that's why, if anything, it's more important that Congress be a check on the executive branch's temptation for recklessness than it was 200 years ago. Human nature doesn't change. That's what the Founding Fathers understood.

REP. JACKSON LEE: Thank you. My office is calling me about my airplane.

Mr. Williamson, I want to yield to you for a moment so that you can comment.

MR. WILLIAMSON: Thank you, and I'll be very brief.

First, I have not studied H.R. 4020. If H.R. 4020 does the same thing that de-funding or not appropriating, cutting off funds would do, I don't understand why it should make a difference. If you are trying to avoid tough political issues, my reaction is that I thought that was your job. There is no doubt about it, there's some hard choices that you have to make. And I think the failure to face up to those hard choices is not an excuse for upsetting the balance and procedures set by the Constitution.

Second, I am just baffled by this frantic panic as to what we are in, we've got to have new legislation, we've got to have a new understanding, morass that Bruce Fein talks about our being in. If we are in such a morass, I would point out that we used the procedures that 53 mandates. The president went to Congress and got Congress to get onboard politically.

The third thing is that we don't have time to do this, but I want to assure you that most, if not all, of the constitutional interpretation that you've heard since you've been in the chair would be absolutely disputed by the Office of Legal Counsel of any administration, Democratic or Republican.

REP. JACKSON LEE: Mr. Williamson, let me thank you and say to you I started out critiquing my colleagues and myself. And I end by saying that we are doing just what you have asked us to do, and that is to make the hard decisions. And frankly, our making them in the backdrop of the Constitution that it may not, in and of itself, be the document that can protect Americans against the abuse of power in any branch of government, and we may need to look at the resolution before us or H.R. 4020 which is specifically on the Iraq war because we have asked the questions that you have asked, and we have gotten failing grades.

There have been any number of attempts to cut the resources, but we are facing against an empowered executive, as Mr. Fein has noted, who takes their credits from how many they can conquer. That means that they will twist or alter the counsel that they give to members of Congress who will then leave places like the White House or secret rooms in this place and be convinced that the weapons of mass destruction are headed toward their grandchild or son or daughter.

We have to be able to take the spirit of the Founding Fathers, of which I think you're trying to promote, mix it with the courage that we should continue to develop with the modern-day practices of an empowered president who is seen around the world, be it Democrat or Republican, male or female, in corners far and wide and America being viewed as the solution to all problems. With that, I believe, comes a necessity for restraint and analysis. The question is, how do we do it?

And for those of us who have been forever committed to the fact that this was a wrong war, we are forever, if you will, not suggesting that our soldiers have died in vain. But we are pained by the loss of life and continue to ask ourselves why. I think this hearing has brought us a long way to suggesting what we need to do. It might mean that Chairman Delahunt, who I commend for his hearing, we might all need to do it sooner rather than later.

Thank you all. And I'm looking for the immediacy of the gavel. The motion has been moved and seconded. The hearing has been adjourned. Thank you.

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