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Hearing of the House Committe on Foreign Affairs - The Role for Congress and the President in the War: The Recommendations of the National War Powers Commission

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Location: Washington, DC


HEARING OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS
SUBJECT: THE ROLE FOR CONGRESS AND THE PRESIDENT IN WAR: THE RECOMMENDATIONS OF THE NATIONAL WAR POWERS COMMISSION
CHAIRED BY: REP. HOWARD BERMAN (D-CA)
WITNESSES: WARREN M. CHRISTOPHER, SENIOR PARTNER, O'MELVENY & MYERS LLP, FORMER SECRETARY OF STATE; JAMES A. BAKER III, SENIOR PARTNER, BAKER BOTTS LLP, FORMER SECRETARY OF STATE; LEE H. HAMILTON, PRESIDENT AND DIRECTOR, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS, FORMER CHAIRMAN OF THE HOUSE FOREIGN AFFAIRS COMMITTEE

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REP. BERMAN: The committee will come to order. Today we turn our attention to one of the most sacred trusts -- oh, I yield myself seven minutes. Today we turn our attention to one of the most sacred trusts of any government, the decision to send its sons and daughters into harm's way. For decades, constitutional experts and policy analysts have struggled to delineate the responsibilities of Congress and the president in authorizing the use of U.S. Armed Forces.

The war powers question is far from academic. American men and women in uniform are engaged in hostilities on the other side of the world. As eloquently stated by our two esteemed witnesses, whether or not to go to war is the most agonizing decision a country can make.

The War Powers Resolution of 1973, which we will be reviewing today, was born of congressional frustration over the executive branch's commitment of forces in Southeast Asia in 1960s without appropriate involvement of Congress, a co-equal branch of government. The law states, in essence, that the president must withdraw U.S. forces from any conflict within 60 days of their deployment unless Congress has specifically authorized the continuation of their involvement. Unfortunately, this has been a near constant exercise in futility.

Presidents from both parties have declared that the War Powers Resolution is inconsistent with the Constitution. No president in the past 35 years has filed a report pursuant to the War Powers Resolution. And while the War Powers Resolution specifically directs the president to consult in every possible instance prior to introducing U.S. troops into harm's way, there have been numerous instances of U.S. military action where there has been no prior meaningful consultation with Congress, sometimes with calls coming while planes were in the air. Examples include the invasions of Grenada in 1983 and Panama in 1989. Then the president believed he could deploy forces for short periods of time without adhering the resolution's consultative requirements. Similar cases occurred in Somalia in 1992 and Haiti in 1994.

To be fair, presidents have sought, at various times, the collective judgment and backing of Congress prior to significant armed conflict, in part in response to congressional efforts to return to a more faithful adherence to the Constitution's division of war powers. Major combat operations, including the Gulf War of 1991, the conflict in Afghanistan in 2001, and the 2003 Iraq War were all the subject of congressional debates and a vote by both the House and Senate, resulting in an authorization to use U.S. Armed Forces. The conflict in Kosovo was also subject to congressional votes, albeit conflicting ones and usually negative ones on the opposite sides of the same issue, in fact. And the House voted to limit U.S. military involvement in Central America during the Reagan administration, which led to a scaling back of American intervention in the region.

But to the extent presidents have negotiated around the War Powers Resolution or not consulted Congress at all, the resolution has not fulfilled its original purpose. It essentially remains a well intentioned yet toothless mechanism to force consultations and if necessary, a withdrawal of U.S. Armed Forces should Congress not approve of their deployment within 60 days. Indeed, presidents, scholars, and even some members of this body continue to dismiss the resolution as unconstitutional and workable.

I became particularly seized with the war powers question during Secretary Baker's term as Secretary of the Treasury, when President Reagan authorized U.S. war ships to defend reflagged Kuwaiti tankers in the gulf during Iran-Iraq war. We could never quite get the administration to admit that these war ships had been deployed into hostilities and were subject to the War Powers Resolution.

In close cooperation with my respected former colleagues, Dante Fascell and Lee Hamilton, several of us undertook an effort to rewrite a War Powers Resolution and invite the president to seek prior authorization for military action. The thrust of that legislation from 1988, H.J. Res. 1675, was to require the president to consult with an affirmative consultative group consisting of congressional leadership and some leaders chosen by the Democratic Caucus in the Republican Conference of the House and Senate. It effectively preempted claims by the administration that consultation was unnecessary or improvident.

I welcome a rekindling of this debate through the commendable work of the National War Powers Commission chaired by Secretaries Baker and Christopher, which believes Congress should repeal the War Powers Resolution. In its place, the commission has recommended a consultative mechanism and a procedure for Congress to take the measure of support for the president's military actions. If such deployment does not command military support -- majority support, then any member of Congress may propose a joint resolution of disapproval that would require an end to the military involvement with such resolution being subject to expedited procedures. A resolution, of course, would be subject to a veto, which would have to be overcome a two-thirds majority.

I'm not sure if the proposed legislation would sufficiently balance the authorities between the executive and legislative branches. However, I am certain that the proposed draft is a real and substantial improvement over the existing law. I'm gratified the commission has made this contribution to the war powers debate, and I can think of no better witnesses to address the critical issue of how to make the decision to go to war. I'm now happy to yield to the distinguished ranking member for her opening statement.

REP. ILEANA ROS-LEHTINEN: Thank you so much, Mr. Chairman. And I also join you in welcoming our most distinguished witnesses this morning. I'm grateful for the time invested by our great Secretaries of State, Mr. Baker and Mr. Christopher, as well as our former chairman and dear friend of this committee, Lee Hamilton, as well as all of their colleagues on the commission. Their insight and their expertise are highly welcome.

The life and death issue, as you pointed out Mr. Chairman, of committing our armed forces to combat is one of the most solemn responsibilities of our federal government, a responsibility that has only become even more complex since the deplorable attacks on our nation on 9/11. The Constitution vests the Congress with the power to declare war and to raise and support armies, while making the president the commander in chief of the armed forces. The proper exercise and the interrelation of these war making powers has been a source of historical ambiguity and tension, which some see as healthy and others as dangerous.

The War Powers Resolution, an attempted congressional corrective, was passed over President Nixon's veto in 1973 but has not produced a settled consensus. In this context, it would be useful to hear from our witnesses about the details of their proposed replacement for the War Powers Resolution, which they have titled the War Powers Consultation Act. I'm interested in learning why they believe it represents an improvement over the current War Powers Resolution and how it would operate in current circumstances. Congress always possesses the constitutional authority to cut off funding for U.S. participation in any particular conflict. But where no such consensus exists, our service men and women deserve our full support, including political support for their mission and their sacrifices.

The commission has attempted to address some of these issues by offering a proposal to serve as a starting point for possible legislative action. I ask our witnesses to provide us with additional insight on how they intend their proposal to operate on several issues. First, I would be interested in understanding their decision to shift the statuary consequences of congressional inaction, where the War Powers Resolution requires congressional approval for the president to continue U.S. troop commitment beyond 60 days, although it has not been enforced in practice. The proposed Constitution Act -- Consultation Act would allow such deployment to continue in the absence of congressional disapproval.

Second, their definition of significant armed conflict specifically excludes a number of circumstances, such as actions to repel or prevent eminent attacks, limited acts of reprisals against terrorists, acts to prevent criminal activity abroad, and covert operations, among others. Given the generality of these exceptions and ingenuity of the executive branch, I would like to understand better how this new definition would improve rather than intensify the conflicting interpretations on authorities that have arisen under the War Powers Resolution.

Third, the commission's proposal would create a standing committee, the Joint Congressional Consultation Committee, JCCC, as the focus for enhanced congressional executive consultation. Aside from the question of whether Congress can constitutionally require the president to consult before exercising his authorities, how do you see this joint congressional committee fundamentally improving pre conflict resolution and consultation?

And again, I want to thank Secretaries Baker and Christopher and former Chairman Hamilton for their work on this report, the National War Powers Commission Report, which represents a fitting continuation of their distinguished careers in public service. So thank you, gentlemen, for being with us here today. Thank you, Mr. Chairman.

REP. BERMAN: Thank you very much, Ms. Ros-Lehtinen. And we have excellent witnesses. Does any member want to overcome the natural barrier to seeking one minute for initial comments? The gentleman from New Jersey, Mr. Payne, is recognized for one minute.

REP. DONALD PAYNE (D-NJ): Thank you very much. Just would like to also welcome our two great secretaries, the former Secretaries of State. I had the privilege to serve under both of them, and of course, our chairman, Lee Hamilton. I think that it is certainly fitting that we try to come up with a resolution to this question.

I mean, ever since the Bay of Tonkin Resolution, we have gone into December 7, I guess, or December 8th in 1941 was the last time we really declared war, I suppose. But since then, we've been into Grenada and Panama. We've been into Haiti and went to Liberia, was in Somalia, been in Bosnia and Sudan, have gone, of course, to Iraq. Some want to go to Iran, North Korea. So I do think that at some point in time we need to have a clarification of the duties.

And I commend the committee for the War Powers Commission, such distinguished persons. I hope that we can come to grips with the resolution. And with that, my time is expired.

REP. BERMAN: The time of the gentleman has expired. On behalf of the institution, I would say you served with the two secretaries, not under the two secretaries.

(Laughter.)

The gentleman from New Jersey, Mr. Smith --

REP. CHRISTOPHER SMITH (R-NJ): Mr. Chairman, thank you.

REP. BERMAN: -- is recognized for one minute.

REP. SMITH: Let me just say very briefly that our three witnesses are extraordinary, wise, and experienced men, all of whom have profoundly and positively shaped foreign policy during some of this nation's most challenging years. The War Powers Act clearly has failed to provide any meaningful framework for the president or for the Congress to deal with the profound issues of war and taking a country to war.

I think this commission's report -- and I have read it cover to cover, like I'm sure every member of this committee has -- provides a very, very meaningful blueprint for action. And I think having Mr. Hamilton, our former chairman who I served with as well, as a very eminent member of this commission bodes well. He not only heads the 9/11 Commission, which he and Tom Kean so ably chaired, made a difference. Most of the recommendations, almost every one of the recommendations they made, either through administrative action or by congressional action, has been put into policy and into law. I think this is a starting date for Congress, and hopefully we come out of the blocks and take very seriously your recommendations. And I thank you.

REP. BERMAN: The time of the gentleman has expired. We served under Chairman Hamilton. We served with Secretaries Baker --

(Laughter.)

The gentleman from Massachusetts --

REP. BILL DELAHUNT (D-MA): Thank you, Mr. Chairman.

REP. BERMAN: -- is recognized for one minute.

REP. DELAHUNT: Thank you, Mr. Chairman. As you're aware, chairing the Committee on Oversight, I conducted a number of hearings on these same issues. And I applaud you for taking it to the full committee. And I want to express my gratitude to all three gentlemen in taking on what is clearly an issue that deserves serious consideration and is not susceptible to easy resolution. I'm particularly pleased that you've taken the concept of consultation and elevated it. I think that is absolutely essential to a thoughtful decision.

I'm reminded of the quote by Senator Hagel during the course of the debate on Iraq where he claimed that the Bush administration considered Congress as a constitutional nuisance in terms of that particular conflict. I dare say that has occurred previous to the Bush administration as well, both with Democratic and Republican presidents. However, I -- am I done?

REP. BERMAN: You can finish the sentence.

REP. DELAHUNT: I'll either make it a very long sentence or I'll stop -- I'll stop. I thank the gentleman.

REP. BERMAN: The time of the gentleman has expired. The gentleman from Texas, Mr. Paul.

REP. RON PAUL (R-TX): Thank you, Mr. Chairman and welcome, panel. I do appreciate the chairman bringing this very important issue before us, because it's something that I've been talking about for a long time. I think it's crucial, and I agree that the War Powers Resolution has not functioned very well. And a lot of people have argued that it is unconstitutional.

Of course, the presidents have argued it was unconstitutional because more power and more leeway. And others, such as myself, have argued that it has given the president too much power. It actually legalized war for 90 days, and it's very difficult to get out of a war once it gets started.

Since World War II, we've had essentially perpetual war with no significant congressional approval in that there's never been a declaration of war, and there's a lot of ambiguity. But quite frankly, I think the ambiguity comes from that fact that we don't follow it precisely, which is very clearly stated in the constitution. You can't go to war unless the war is declared. And we'd be a lot better off if we just followed that mandate.

REP. BERMAN: The time of the gentleman has expired. The gentleman from Georgia, Mr. Scott, is recognized for one minute.

REP. DAVID SCOTT (D-GA): Thank you very much, Mr. Chairman. I too want to commend you all for coming before us and doing this extraordinary work. There's no more important work than what we do to make a decision before our young men and women into harm's way. But just one point, this legislation calls for a congressional vote approving military action 30 days after its start. If Congress does not approve of the military action, it can submit a resolution expressing its disapproval.

My point is submitting a disapproval resolution seems unnecessary when Congress can simply practice the constitutional rights and deny funding. So the question is, why is there a need for this additional measure? I think that's the point we want to make.

REP. BERMAN: The time of the gentleman has expired. The gentleman from Missouri, Mr. Carnahan, is recognized for one minute.

REP. RUSS CARNAHAN (D-MO): Thank you, Mr. Chairman. A quick thanks to the members of the commission for this work. I think it's long overdue, also to subcommittee Chairman Delahunt for the hearings we had in his subcommittee last Congress and to the chairman for brining this up. It's an issue, like me and my colleagues, I believe, needs to be reexamined and revisited in ways that are constitutional and practical.

I can't begin this debate without mentioning my friend, the late Missouri Senator Tom Eagleton, who was one the original champions of preserving the war powers with the popularly elected Congress. While he ultimately voted against the final committee report because he viewed it as too watered down, his work and subsequent attempts to strengthen the War Powers Resolution left an indelible mark on the debate surrounding Congress' role in war. Senator Eagleton also sought to prevent end run around congressional authorization by the executive branch by seeking to prevent the president from using treaties and other authorities as the basis for going to war. So I'm anxious to hear the panel talk about that today. Thank you, Mr. Chairman.

REP. BERMAN: The time of the gentleman has expired. The gentleman from Indiana, Mr. Burton.

REP. DAN BURTON (R-IN): Mr. Chairman, it's nice to have these three great people here, especially Lee Hamilton from Indiana. We have that Hoosier intelligence at the desk, and we really appreciate that. There have been times when presidents have gone beyond their authority, such and Lincoln and Jackson. And what I want to find out today is how we deal with those gray areas, because there are gray areas. And so if you could eliminate those areas, I'd really appreciate it.

REP. BERMAN: The time of the gentleman has expired. The gentleman from California, Mr. Rohrabacher, is recognized for one minute.

REP. DANA ROHRABACHER (R-CA): Thank you very much, Mr. Chairman. Let me note, I have served under two of our witnesses today, Chairman Hamilton, but also under Mr. Baker, who was the Chief of Staff at the White House when I worked at the White House. But I have listened a great deal to Mr. Christopher. I don't usually listen to people who I'm working under, so -- (laughing.)

REP. BERMAN: We've noticed.

REP. ROHRABACHER: All right. But let me just note, both of them were fine bosses and contributed a lot to my understanding of how the world works, and I appreciate the guidance from both of them in my career. And I look forward to this testimony.

Let me just say very quickly, I don't think we need a change in the law. We need to have Congress have courage enough to use the powers that we already have to balance off the authority of the president in this very important area in terms of war fighting and committing of our troops. As far as I'm concerned, Congress has been gutless and unwilling to exercise the power it already has. Why change the law when we aren't even exercising the authority we've got? Thank you.

REP. BERMAN: (Audio cuts out) -- time -- (audio cuts out) --

REP. GERALD CONNOLLY (D-VA): Thank you, Mr. Chairman.

REP. BERMAN: -- for one minute.

REP. CONNOLLY: Thank you, Mr. Chairman, and thank you for holding these hearings. Article I, Section 8 of the Constitution explicitly grants the legislative branch the exclusive power to declare war. Article II, Section 2 declares the president shall be the commander in chief with respect to carrying out the exercise as far as declared by the Congress. In no way did the founding fathers envision vesting the power to declare war with the president. In fact, they were fleeing from that very model of government.

And for the past half century, this body has abrogated its responsibility and watched an all too willing executive branch to step in to fill the void. To it, the last formal declaration of war made by this Congress was World War II, but we have repeatedly sent and currently have troops deployed at war. Today we're seven years into the largest kinetic U.S. military engagement since the Revolutionary War, predicated on a flimsy congressional authorization and string of exaggerated intelligence from the executive.

Since it was enacted in 1973, no president has seeded the argument that the War Powers Resolution was necessary let alone constitutional, and I think they're right. I think Congress needs to step up to its responsibility, and I think we need to have this kind of dialogue about what are the proper roles of the legislative and executive.

REP. BERMAN: The time of the gentleman --

REP. CONNOLLY: Thank you, and if I may, Mr. Chairman -- simply acknowledge the former Governor of Virginia, Gerry Baliles, is here today.

REP. BERMAN: Yes.

REP. CONNOLLY: We're very pleased to have him.

REP. BERMAN: Do any other members of the committee seek recognition. The gentlelady from California, Ambassador Watson.

REP. DIANE WATSON (D-CA): Thank you so much, Mr. Chairman, for this hearing. And it's clear from the war in Iraq that discourse between Congress and the president must begin at the onset of significant armed conflict. Looking back, in retrospect, the War Powers Resolution of 1973 does not provide a needed forum. It is unclear that adopting the proposed War Powers Resolution of 2009 will encourage the president to begin the necessary discussion and truly consult with Congress and the people. But it's a start to making necessary changes on how our country enters significant armed conflict. So I look forward to the testimony, and I welcome our expert witnesses. Thank you.

REP. BERMAN: The time of the gentlelady has expired. The gentlelady from California, Ms. Lee, is recognized for one minute.

REP. BARBARA LEE (D-CA): Thank you, Mr. Chairman. And I too want to thank you and recognize all of you for all of the service that you have provided to our country and so glad that you're here today and we've come to this point. My predecessor, Ron Dellums, was very involved in issues around the War Powers Act, and I've been deeply involved in them also as a result of being on his staff and now as a member.

And there are several issues, and I hope the commission was able to address some of these issues. One is, of course, the president has the authority to use force to prevent eminent attacks on the United States.

So I want to find out how the commission or did the commission address the authorization or an authorization to use force as a preemptive strike to prevent future military attacks, just how that was perceived within your recommendations of the War Powers Act revision.

Also, I'm one who believes that only Congress can declare war. I still believe that. And I don't believe we have the authority to provide the authority to the president to do whatever. And so let me just ask you if you could address how the authorization to use force versus a declaration of war --

REP. BERMAN: The time of the gentlelady --

REP. LEE: -- (crosstalk). Thank you very much.

REP. BERMAN: -- has expired. And if there is no one else seeking recognition, I will now turn to our witness panel, for whom no introduction is really necessary, but I'll give one anyway. James A. Baker III served as the 61st Secretary of State under President George H.W. Bush from 1989 to 1992 and as President Bush's White House Chief of Staff from 1992 to 1993. Mr. Baker, a 1991 recipient of the Presidential Medal of Freedom, served during President Ronald Reagan's administration as Chief of Staff from 1981 to 1985 and as Secretary of the Treasury from 1985 to 1988.

Mr. Baker is the honorary chairman of the James A. Baker III Institute for Public Policy at Rice University and senior partner at the law firm Baker Botts. Mr. Baker and former U.S. Congressman Lee Hamilton served as co-chairs of the Iraq Study Group in 2006. And Mr. Baker and former President Jimmy Carter served as co-chairs of the Commission on Federal Election Reform in 2005.

Warren Christopher served as the 63rd Secretary of State under President William J. Clinton from 1993 to 1997. He served as the Deputy Attorney General of the United States from 1967 to 1969 and as the Deputy Secretary of State of the United States from 1977 to 1981. A 1981 recipient of the Presidential Medal of Freedom, Mr. Christopher is senior partner at the law firm of O'Melveny & Myers, where he was chairman from 1982 to 1992. In order not to look parochial, I will not specifically refer to the number of major contributions he's made to the Los Angeles community in a whole variety of areas, and of course, now lives there.

Lee Hamilton is president and director of the Woodrow Wilson International Center for Scholars and the director of the Center on Congress at Indiana University. Lee Hamilton served for 34 years in Congress, representing Indiana's Ninth District from January 1965 to January 1999. During his tenure, he served as chairman and ranking member of this committee. He also chaired the Subcommittee on Europe and the Middle East from the early 1970s until 1993, along with at least four other committees during his congressional tenure.

Since leaving the House, Hamilton has served on every major commission on national security, including a stint as vice chair of the National Commission on Terrorist Attacks Upon the United States, known as the 9/11 Commission, and co-chair of the Iraq Study Group. Congressman Hamilton, thank you very much for returning to the committee. I understand you will not be giving an opening statement, but you will be available to answer questions. And I want to as Jerry Connolly did, recognize the Director of the Miller Center, which produced -- sponsored this commission, the former Governor of Virginia, Gerald Baliles -- and performed a valued role as an advisor to the commission.

Without objection the Executive Summary of the National Commission's report and the proposed legislation offered by the commission shall be inserted into the record. And Mr. Baker, I call upon you to proceed with your opening statement. The mike --

MR. BAKER: Thank you, sir, very much. Chairman Berman and Ranking Member Ros-Lehtinen, members of the committee, it is a real honor for us to be with you today. We're here, of course, to discuss the report of the National War Powers Commission, which Secretary Christopher and I co-chaired and on which your esteemed and very distinguished former chairman, Lee Hamilton, served as a very valuable member. We are quite fortunate, as you've noted, Mr. Chairman, that Chairman Hamilton is with us here this morning.

Let me begin with a bit of background on the commission and the serious problem that it was formed to deal with. And then Secretary Christopher will detail our proposed new legislation. Two years ago, Chris and I were approached by the Miller Center at the University of Virginia. And as you've noted, Mr. Chairman, the director of that very fine center, the distinguished former Governor of Virginia, Gerald Baliles, is with us today. And we were asked at that time to co-chair an independent but bipartisan commission to consider an issue that has bedeviled legal experts and government officials since the very day our Constitution was framed, and that is, of course, the question of how our nation makes the decision to go to war.

As we know, our Constitution gives the president the powers of commander in chief. The Congress has, of course, the power of the purse and the power to declare war. But history indicates that presidents and Congresses have often disagreed about their respective roles in the decision to go to war. And the Supreme Court has shied away from settling the Constitutional issue. So it was evident to us that if we were going to recommend anything meaningful it had to be some practical or pragmatic solution to this conundrum.

As we put together the commission, we thought it was important to have a wide range of perspectives and voices. And so our commission includes legal experts, former congressional members, former White House staffers, and former military leaders. Our 12- member commission is equal part Democrats and Republicans. After 14 months of study, Mr. Chairman, we concluded the central law governing this critical decision, the War Powers Resolution of '73, is ineffective; it's unworkable, and it should be repealed and replaced with a better law.

The 1973 resolution's greatest fault is that most legal experts consider it unconstitutional although I think it is important to note that the Supreme Court has never ruled on it. We believe that the rule of law, which of course I'm sure everybody in this room would agree, is a centerpiece of American democracy, is undermined and is damaged when the main statute in this vital policy area is regularly questioned or ignored.

The War Powers Resolution of '73 has other problems. It calls for the president to file reports of armed conflicts and then use these filings to trigger the obligation for the president to remove troops within 60 or 90 days if Congress has not affirmatively approved the military action. This of course purports to allow Congress to halt military campaigns simply by inaction. Unsurprisingly, not one president Democrat or Republican has filed reports in a way that would trigger the obligation to withdraw forces. As a result, the 1973 statute has been honored more in the breach than in the observance. Recognizing this, others have suggested amending or replacing that flawed '73 law. But no such proposal has gotten very far typically because most of them have sided too heavily either with the Congress or with the president. A common theme, however, runs through all of these efforts. And that common theme is the importance of meaningful consultation between the president and the Congress before the nation is committed to war and our statute would do exactly that. It would promote, in fact mandate meaningful discussion between the president and Congress when America's sons and daughters are to be sent into harm's way.

But Mr. Chairman, it does so in a way that does not in any way limit or prejudice either the Executive Branch's right or the Congress's right or ability to assert their respective constitutional war powers. Neither branch is prejudiced by what we are proposing. And in fact, our statute expressly preserves each branch's constitutional arguments. In fact, we think that both branches and we know the American people would benefit from an enactment of this statute.

Mr. Chairman, our report is unanimous. That is somewhat remarkable given the different political philosophies on the part of the members of our commission. I would submit to you that there is something good about a solution we suggests when you can get people from differing political perspectives like Judge Abner Mikva and former Attorney General Edwin Meese to agree on the solution. Both of these gentlemen serve very ably on our commission and both of them support this result.

Before I turn the microphone over to Secretary Christopher, let me simply say how rewarding it has been for me personally to work with this fine gentleman and this able statesman and this dedicated public servant, a truly great American, Secretary Christopher.

REP. BERMAN: Thank you very much, Secretary Baker.

Secretary Christopher, we look forward to your testimony.

MR. CHRISTOPHER: Mr. Chairman, ranking member, members of the committee, my testimony will follow briefly on Secretary Baker's testimony. Without going on about it, let me just say it's a lot more fun to be working with Secretary Baker than working against him. He's really an extraordinary American leader.

The statement I have will be brief. Let me just say the statute that we're putting forward is quite straightforward and almost simple. It establishes a bipartisan, joint congressional consultation committee consisting of the leaders of the House and the chair of the key committees. Under the proposed statute, the committee is provided with a permanent professional staff and access to relevant intelligence information. This is an innovation which we think this Congress ought to very much welcome. The statute requires, as the chairman has said, the president to consult with the committee before deploying U. S. troops into any significant armed conflict, which is defined as a combat operation lasting more than a week. Now if secrecy precludes prior consultation of that kind, the president is required to consult with the committee within three days after the conflict begins. Within 30 (uncertain?) days after the conflict begins, Congress is required to vote up or down on the resolution. If the resolution is defeated any senator or representative may file a resolution of disapproval.

Mr. Chairman, I recognize that many advocates of congressional power argue that Article I, Section 8 of the Constitution joins hands on this issue in the hands of Congress by giving Congress the power to declare war. These proponents say that by this provision the framers of the Constitution stripped the Executive Branch -- (inaudible) -- meant the power to commence war, which the King of England enjoyed and which the framers wanted to avoid. On the other hand, on the other side of the argument, proponents of presidential authority point to the executive power and the commander in chief -- (inaudible) -- the Constitution. They say that the framers wanted to put the authority to make war in the hands of the governing official who had the most ability to execute and the most information. And they point to the recent history of the president's predominance as proof of their position.

Now Mr. Chairman, a whole forest of trees had been felled in writings on both sides of issues pro and con. And although both sides have very good arguments to make I would say only three propositions hold true. First, no consensus has emerged in the 200 years of constitutional history; no one side or the other has won this argument. Second, only a constitutional amendment or a decisive Supreme Court opinion will resolve that fundamental debate. Without extending this, neither one of those things is very likely to happen. Courts have turned down war powers cases filed by as many as 100 members of Congress. And third, Mr. Chairman, despite what I and my fellow commissioners might feel about this debate one way or the other, we determined that we simply can't resolve the debate. The last thing we wanted to do was simply put down another report to paint an opinion as to who is right and wrong.

Thus in drafting the statute before you we deliberately decided not to try to resolve this underlying constitutional-right debate and preserve the rights of both the Congress and the Executive. Instead of trying to call balls and strikes, we unanimously agreed that any legislative reform must focus on practical steps to ensure that the president and Congress consult in a meaningful way before we go to war. We believe that among all the available alternatives, the proposed statute best accomplishes that resolve. We think it's a significant improvement over the 1973 resolution and it will be good for the Congress, the president and the American people.

From the standpoint of the Congress, and we know I'm here in the Congress today, the statute gives the Congress a more significant seat at the table when the Congress is thinking about whether or not the nation should go to war. It provides not only a seat at the table but a permanent staff and access to all relevant intelligence information. The statute also calls for a genuine consultation not just lip service, not just notification (uncertain?).

I strongly believe that the seasoned views of congressional leaders constitute a vital resource for the president in his decision- making process. Having heard a number of these debates over the years, I can say I think it's very healthy for the president to hear independent views from people who don't work for him. The president, I think, is advantaged by this because this proposal would eliminate a law that every president since 1973 has regarded as unconstitutional, but nevertheless has to worry about and is an overhang. This provides a mechanism so he knows who to consult with on Congress; he just doesn't have to guess.

Mr. Chairman, working with the former chairman of the committee Lee Hamilton, here on my left, we sought to set out a careful balance between the Congress and the president on matters like this of enormous importance. I'm sure that neither the strongest advocates of congressional power nor those of presidential power will be happy completely with our proposal, but we think that what we've done is a fair reflection of the right balance to strike. We think it's a practical and pragmatic reform.

Thank you very much, Mr. Chairman.

REP. BERMAN: I thank you very much.

Am I correct, Lee, that you have no opening -- (inaudible).

Then, I will yield myself five minutes to begin the questioning. This is to any of you who would care to respond. Now, I have two questions. I will throw them out and remind my colleagues that the five minutes includes what I say and their answers. So you want to pace yourselves.

Question number one, I mentioned this earlier. One thing that worries me about this is the extent to which this more formalized, institutionalized consultative process, which I find appealing, does that become the basis for, at least on the occasions where the White House has asked the Congress for the authorization to use force, sometimes thought of as the functional equivalent of a declaration of war, but others disagree. But will that reduce the incentive for the White House to do what on at least three occasions they have done, which is come before hostility started to seek a direct vote by both houses?

The second question is as to the exceptions in terms of the time limits, and the bases for not applying this process. I raise the hypothetical question about a decision to hit nuclear installations in another country in order to prevent them from developing a nuclear weapon. The time frame might be thought of in less than a week, but the consequences of that decision could lead to a conflict that goes much longer than a week. To what extent, in a more general sense to what extent do these exceptions threaten to swallow the general rule that your proposal makes?

MR. BAKER: Mr. Chairman, with respect to your first question, I don't believe that this would reduce the White House's information to come to the Congress for approval. In fact, I think it would increase it as I think you pointed out in your opening statement; that has been the case over the last 50 years with the exceptions, I think, of Grenada, Panama and Bosnia. The White House has actually come to the Congress for approval and gotten a vote of approval. I think the reason presidents come to the Congress is because they need the political support that is gained by getting the approval of the representatives of the people. By requiring extended and more intensive consultation in the first instance, we think it would move that practice forward positively and not negatively. I don't think the fact that the president consulted would mean that he would be satisfied to go forward without trying to get Congress's approval. The presidents normally want Congress's approval for the political benefit that that brings, not because they think they need it because no president believes he, so far he, absolutely needs it. So they come to the Congress for the political benefit that that brings; and I think they would continue to do so.

I might take a quick shot at your second question and then maybe Chris wants to add or --

REP. BERMAN: Only because of the time maybe on the second one because you only have another minute before I will have to gavel myself down.

MR. CHRISTOPHER: Mr. Chairman, any hypothetical such as you put forward would have to be measured against the statute.

And to be brief about it, any conflict that goes on longer than seven days requires the president to move forward and the Congress to vote up or down on that particular action. You can guess as well as others, as to whether such a conflict to take out nuclear facilities might take longer than seven days, it probably will but with respect to any such hypothetical all we suggests is that you lay it down against the statute and see how the statute affects it.

MR. : Mr. Chairman, may I simply observe that every president confronts a really difficult judgment of how to consult with the Congress. The Congress is a very large, very diffuse institution. One of the great advantages of the proposed statute is that it gives the president a mechanism, a focal point by which to consult. And I think any president would use that extensively. There is also a provision in this bill that encourages; it does not require that a president consult regularly with this consultative committee. I think that -- you can't impose consultation on anybody if they don't want to consult, I guess, but w try to encourage it here. The result of these two things, in my view would be, you would develop an ongoing relationship between the president and the Congress on many questions of foreign policy and particularly one of going to war.

REP. BERMAN: My time has expired. The gentle lady from Florida.

REP. ILEANA ROS-LEHTINEN (R-FL): Thank you so much, Mr. Chairman and thank you for your excellent testimony this morning.

Following up on my opening remarks, your legislative proposal on page nine, section nine definition talks about the term significant armed conflict. It says: "Shall not include any commitment of the United States Armed Forces by the president for the following reasons A. B. C. D. and E, covert operations, training exercises, acts to prevent criminal activity, limited reprisals against terrorists." Couldn't a creative executive construe these exemptions very broadly to avoid the reporting and legislative requirements of the statute? And why do you expect that those ambiguities would be less problematic than the interpretive disputes that have arisen under the War Powers Resolution now?

Thank you gentlemen.

MR. BAKER: Not in my opinion, congresswoman. I don't think -- I think that what we're calling for here is a certain amount of exercise of good faith on both sides. We're not going to resolve the constitutional question here as we point out in our testimony; you can only do that by a Supreme Court decision or a constitutional amendment. We're not going to get either one of those. But we do need to try to move towards greater cooperation and consultation. The exclusions that we have listed here all disappear if a conflict has extended for more than seven days. Nothing in here would be exempt after the conflict. Let's suppose the president took action to prevent an imminent attack on the United States and that that extended for more than seven days, the obligation to consult would be triggered. And the obligation to periodically consult as the conflict went on would be triggered. And the obligation to file a report once a year listing all significant armed conflicts and other operations would be true.

REP. ROS-LEHTINEN: Thank you.

Mr. Christopher, Mr. Hamilton?

MR. HAMILTON: Ms. Ros-Lehtinen, let me just observe that the exceptions to the significant armed conflict are really quite precise and they are very limited in scope. And I do not think they create loopholes, if you would. We'd have to acknowledge here that we spent as a commission an awful lot of time on the definition of significant armed conflict. Obviously, that's very hard to do. We resolved it by defining it in terms of length of time, conflict lasting more than a week. At the limit, the exceptions that are made there are precise, they are ones clearly where you want the president to act on his executive authority, and they're quite limited.

REP. ROS-LEHTINEN: Mr. Christopher, if you wanted to come.

MR. CHRISTOPHER: Congresswoman, I just point to section four (b) which specifically provides that it be any action that goes longer than seven days, then it is subject to the provisions of the statute. And as Congressman Hamilton has just said, we worked a long time on that particular provision and we think that this does give the president authority to act in emergency situations -- (inaudible) -- that authority by the seven-day rule.

REP. ROS-LEHTINEN: I still have a minute. On this seven-day rule, the term: "Significant armed conflict shall not include any commitment of the U. S. Armed Forces by the president for the following purposes." And that's not subject to the seven days.

MR. CHRISTOPHER: Yes, I think if you look at section four (b) Congresswoman, you'll see that if any one of the actions described in section three (b) of this act becomes a significant armed conflict, as defined in section five (a) then the president shall initiate the consultation with the joint consultation committee. So that seven day provision is an override on each of the exception provisions.

REP. ROS-LEHTINEN: Thank you. I think in my 20 seconds that are left we have different versions obviously, but it's the definitions of the exemptions that I believe that are just as open to controversy, to interpretation as the original act itself. Thank you very much.

MR. CHRISTOPHER: I'm very sorry, Congresswoman, I didn't realize you had a different numbering than we have here.

REP. BERMAN: Just to clarify the substantive issue, you're saying number one, 9-1; the other sections are subject to 9-1. So if there is a combat operation lasting more than a week, it doesn't matter what kind of, I think it was the consultation.

MR. CHRISTOPER: Mr. Chairman, that's correct.

REP. BERMAN: The gentleman from New Jersey Mr. Payne is recognized for five minutes.

REP. DONALD PAYNE (D-NJ): Thank you very much.

I just have a question. It has been indicated in the testimony that the courts have failed to involve itself, the judiciary, in the question of who has the authority whether it's the Executive Branch totally or whether it's the Congress. I guess my question is that I said in the past courts have declined jurisdiction for deciding whether the president violated the War Powers Resolution by entering into hostilities without congressional authorization. If a member of Congress, in your opinion, were to file suit against the president for violating the War Powers Consultation Act of 2009, the one that we have before us, would in your opinion a court be more likely to accept jurisdiction for deciding the merits of the case? Start with you, Mr. Baker.

MR. BAKER: That was a great question. That's a great question and you may get differences of opinion among the lawyers here at this witness table. I don't know what Secretary Christopher's view is; my view is no they wouldn't be any more likely to. I think they would still consider it to be a political issue that they might try to decline to take jurisdiction of. But you would have, you would have a much clearer situation, I think then in the case of a statute the constitutionality of which is generally widely questioned.

MR. CHRISTOPHER: Congressman, you could predict what the Supreme Court is going to do for sure. There are dozens of instances and more than 100 members of Congress that sought to invoke the jurisdiction of the Supreme Court of the United States. And for one reason or another, usually because they called it the political question, often because they say the plaintiff does not have standing to sue, the Court has declined to get into that. I think it wants to stay away from that issue on political grounds.

MR. HAMILTON: Mr. Payne, we had a battery of lawyers advise us on this question. I think it is total unanimity among the lawyers; and as the two secretaries have stated, the courts have just stayed away from this. They do not think it is an appropriate role for the courts to get into this most political of all questions, do you go to war.

REP. PAYNE: Thank you very much. I usually say if there are two lawyers in the room, you'll at least have two opinions.

MR. HAMILTON: Well, at least we all agreed on this, Mr. Congressman.

REP. PAYNE: Yes.

I yield back, Mr. Chairman.

REP. BERMAN: Of course there was a -- that used to be the rule about redistricting, then Baker v. Carr came along and all of a sudden the political question wasn't a political question. You weren't the Baker though, I don't think.

The gentleman from New Jersey, (inaudible).

REP. SMITH (?): Let me just say the draft that we have, I think underscores some of the concerns the ranking member made. I would hope that if we talked about significant armed conflict it would stop and not have exclusions except in the most egregious manners because the legislation we have suggests that to prevent imminent attacks, limited acts of reprisal against terrorism, terrorists and states, I mean that's exactly in a way without a doubt, what got us into the Iraqi war, and then covert operations. So, it seems as if the exclusions page on our draft just makes it so that just about anything from an elasticity point of view could be included in that. So we've got to be very careful how we draft it.

Let me ask -- I was going to ask about that, but I thank the ranking member for making that very important point. Let me just ask about the joint committee, the make up. I served as chairman of the Veterans Affairs committee and I often thought of that committee as the consequences committee having spent so many years working with service connected, disabled veterans. Was there any discussion -- I know you drew your ideas from prior proposals, but would it be advisable to include the Veterans Committee chairman and ranking member? No one knows the burden of war more than a veteran especially a disabled veteran; and certainly their representatives on that committee would have a very unique perspective.

And secondly, the talk of consultation with the joint congressional committee and the conveyance of a classified report setting forth the circumstances necessitating the significant armed conflict, the objectives and the estimated scope and duration of the conflict before ordering the deployment of U. S. Armed Forces into significant armed conflict is in my opinion necessary, prudent, and will make potentially reckless deployments less likely. It may also enhance the sustainability especially over the long run of a deployment. But the concern is that the secrecy part which can be exercised by the president and you recognize that in section five (a) could render the consultation and reporting provisions before an action is - (inaudible). Every president thinks - and I say this with respect - they know best. And Congress might be left out and that language then becomes almost sense (uncertain?) of the Congress.

What's your thought on that?

MR. CHRISTOPHER: Congressman, on the part of your question, I think we wanted to keep the consultation committee relatively simple, relatively narrow, that certainly would be an issue that Congress could decide if you wanted to add the chairman and cochairman or another chairman and ranking member of another committee that could certainly be done. That would be something that would be up to Congress.

On the other question, we considered very carefully the provision and we've gone about as far as I think we can properly go in limiting the scope of the consultation.

REP. BERMAN: Are you concerned that --

REP. SMITH (?): I'm concerned that everything -- the chief executive or commander in chief might construe everything to be secret. And then after the fact, we get the information and then if these exclusions on the definitions page were to be inactive in the way our draft has it, just about everything -- you could fit everything into that exclusion and we will then have had a very well meaning but --

MR. BAKER (?): I think there is still some difference of view on that last -- first of all, on the secrecy issue, yes, any president particularly one that wanted to act in bad faith, could keep everything secret from you for three days. Well for three days but no more than that. Okay? But I think we have to assume here, since we're talking about trying to encourage cooperation and consultation, that there will be a modicum of good faith on both sides dealing with this difficult issue.

With respect to the exclusions, I think we tried to make clear and I believe this is correct, that after seven days you've got to consult. That covert action is exempted completely because there are other processes, procedures and statutes that govern that. But I believe that it's correct to say that after an engagement has gone on for seven days, even if it's one of these -- even if they were undertaken as one of the exclusive -- exclusion items, then the obligation to consult would take place and the statute would be triggered. Now, that's my view.

MR. HAMILTON: Mr. Smith, obviously, there are limitations to language here, and it's very, very difficult to try to foresee the kind of events the President and the Congress would be confronted with. I don't know that we've got this language exactly right, but it does seem to me that you -- there are going to be a number of instances -- and we've identified I think most of them -- where presidents must act quickly in emergency situations, and you don't want to invoke the process that we have here in this statute.

So we were trying to balance here the role of the Congress on conflict on the one hand, and the role the -- of the commander in chief to act quickly in defense of the nation. And I think we've done a reasonably good job of it, but obviously, it's not the easiest thing to write into statute.

REP. SMITH: Secretary Baker, did you want to -- am I out of time?

REP. BERMAN: No, you're -- long out of time. I got so interested in your question that I -- time -- the gentleman has expired.

The gentleman from Massachusetts, Mr. Delahunt.

REP. BILL DELAHUNT (D-MA): Thank you, Mr. Chairman. And again, let me repeat, I think encouraging consultation is profoundly important and very well might obviate much of the tension and the conflict between the executive and the legislative branches. But I would put forth that meaningful consultation, even -- it is genuine and done in god faith, and presumably it does, in the end does not give the President the power to engage in military action and without the approval or authorization of Congress. I take that to you. And myself and my colleague from North Carolina, Mr. Jones -- we'll be introducing legislation before the end of the month that embraces consultation, but obviously takes a different course in terms of Congress's role.

And I agree with the gentleman who spoke earlier, my Ranking Member Mr. Rohrabacher -- is that the avoidance of the congressional burden of authorization of military action in a large degree is responsible for this debate and for this tension, for this conflict. And I believe that the course that we're on now is dangerous in the sense that Congress, not the executive, continues to allow the erosion of what is our obligation. I don't' know if -- and let me just also note that you refer to the funding mechanism as a way for Congress to assert itself. I don't accept that because I don't think it's always post facto. It's after the initiation of military action.

And again, going back and reading -- at least my reading of the Constitution is that some sort of authorization is required. And we can't just simply look for rationales to avoid our burden. And again, I think the consultative mechanism will help, and I think it's important, and I think it should be enthusiastically embraced by this committee.

But I don't know if any of you had the opportunity to note this morning's -- I think it was in the Washington Post -- opinion piece by George Will relative to the Iraq war. Prior to -- in its -- (inaudible) -- I think Congress shares the burden. And with the expiration of the U.N. mandate, I would submit that there is no authority, no authorization for American military to conduct offensive combat actions. And again, that was the position that was articulated by both the President, by the secretary of state, and by the vice president prior to the election.

And unless we accept or confer or embrace the so-called -- it's called a Status of Force Agreement, which I believe it's not -- and take some action, we will continue to allow the erosion of the congressional responsibility to occur. And I just wonder if any of you have any comments on that observation, on the Will -- George Will opinion piece.

MR.: Mr. Delahunt, I did see Mr. Will's piece, but the point that you make -- it has struck me in the preliminary comments of several members of the committee. You have made the point that Congress has been timid, that it's not been aggressive enough in asserting its constitutional powers and the like. And I think that view is widely shared among many members of Congress, I don't know if the majority, but widely shared.

I think we believe what we have put forward is a very practical approach, and it certainly does not resolve the question that you're raising. You ought to increase the power of the Congress with regard to this critical question of when you go to war. There have been many over a period of many years who have taken that position, and to be very candid about it, that viewpoint has not been able to get a law enacted.

The reverse is also true. There have been many members of Congress who take the opposite view you do, and they want to increase executive power. And the argument has gone on, and it has not been resolved. And the proposal before you does not try to resolve that question. We punt on it, if you would. Our proposal avoids the constitutional debate, and it respects, I think, the constitutional powers of both branches.

REP. BERMAN: The time --

MR.: We're dealing with a very practical problem. The President thinks we've got a national security threat out here and thinks that armed service action is needed, and we're trying to make -- assure that you enhance the opinion available to the President before he makes that decision by going outside his official family and consulting members of Congress.

REP. BERMAN: The time --

MR.: We think people can agree upon that and still take the position that you take, Mr. Delahunt. In other words, you could vote for this bill and still advocate your position. You would not be prejudicing your position at all.

REP. BERMAN: The time the gentleman -- has definitely expired.

And the gentleman from California, Mr. Rohrabacher, is recognized for five minutes.

REP. DANA ROHRABACHER (R-CA): Thank you very much, Mr. Chairman. Let me note that in 1999 when President Bill Clinton sent our military forces to battle Bosnian Serbs, the House of Representatives rejected authorization by a vote of 213 to 213. Then the House defeated a measure declaring a state of war between the United States and the Federal Republic of Yugoslavia. And then we defeated a measure directing the President to remove the U.S. Armed Forces from operations against the Federal Republic of Yugoslavia, and then both houses of Congress agreed to an emergency supplemental appropriation to pay for it.

I don't necessarily think that increasing the influence of people with -- who now have demonstrated an inability to make a decision on this end -- (laughs) -- of the government -- just improving consultation between us and the executive branch are going to make things better. I don't think it'll necessarily create any harm, and I appreciate -- I will be reading your book. I have not done my homework, but I will be reading it thoroughly, and I thank you for spending the time and effort to focus on this relationship.

Clearly, the Constitution gave the preponderance of power in terms of foreign policy and at least the carrying out of military operations to the executive branch. Do you believe that we need to in some way nudge that back? And believe me, I happen to believe that those people who are opposed to the Iraq war -- and we've heard a lot of rhetoric about it -- never were willing to act on that, and that's -- you know, so that's one of the reasons we're here today, is discussing this issue.

But let me just get to the heart of the matter. Do you as wise men who are advising us -- would you suggest that we are -- we need to grant more authority in this way to give a little bit more -- I say emphasis on the legislative branch's role in conducting military operations? Is that what we need to do? Is that what this is about?

MR.: No, not at all, congressman, and that's not what this act seeks to do, and that's not what this act does. There are benefits in this act we think for the executive branch and for the legislative branch. And what this act calls for is, frankly, what most presidents have done and most of the conflicts that we've been engaged in over the past 50 years. And we don't see this as granting more authority, the one branch or the other. We see this as beneficial to both branches. There are benefits in here for each branch.

And we think it would be beneficial as far as the general public is concerned, because the testimony of 40 experts who came before us and the polling that you -- if you look at the polling over the past 70 years, the American people -- when they -- when the question comes to war, they want to -- they would like to think that the congressional and executive branches are on the same page. So they'd like to see this. All this does is enhance consultation.

REP. ROHRABACHER: Is that because there is a lack of -- there's an imbalance now -- (inaudible)?

MR.: It's because it's not structured, number one. It's because -- this would tend, as Chairman Hamilton said, to build trust between the branches if that consultation took place. This specifies how presidents should consult. Right now you say consult with the Congress -- presidents don't know -- you know, some presidents do it one way and some do it another. This would tell you how to do it. And it would do it, by the way -- and I want to volunteer this for the chairman and the ranking member's benefit. It would do it in a way that locks in the jurisdiction of this committee that does not take away any aspects of the jurisdiction of this committee.

The resolution of approval called for in this legislation -- it specifically says would originate here in this committee and in Senate Foreign Relations, and so it doesn't -- by setting up a consultative committee, we are reflecting what presidents have done recently, most all the time in these cases of going to war with the leadership of the relevant committees and the leadership of the Congress.

REP. ROHRABACHER (Inaudible.)

MR.: Well, if this bill --

REP.: (Inaudible.)

MR.: Mr. Rohrabacher, if this bill becomes -- is perceived as tilting power, constitutional power to the Congress --

REP. ROHRABACHER: Yes.

MR.: -- of if it is perceived the other way, as tilting power to the executive branch, the bill is dead. It'll never pass, because the other branches -- (inaudible) --

MR.: It might pass, but it wouldn't become law.

MR.: What?

MR.: It might pass, but it wouldn't become law.

MR.: It would never become law is a better way to -- (inaudible).

REP. ROHRABACHER: All of us need to exercise --

MR.: I --

REP. ROHRABACHER: -- the authority that we've been given. We've been given -- (inaudible).

REP. BERMAN: The time of the -- thank you. The time of the gentleman has expired.

The gentleman from Missouri, Mr. Carnahan, is recognized for five minutes.

REP. RUSS CARNAHAN (D-MO): Thank you, Mr. Chairman. I have two questions I'd like to present to the panel.

First, presidents have used treaties and institutional authority, such as the U.N. and NATO to avoid congressional authorization for going to war. Do the recommendations in the commission's report address this issue, and if so, how? And my second question -- what are the consequences if the President does not consult with the joint committee within three days after an emergency situation, and, frankly, what teeth are in this proposal that are absent from the current law?

MR.: Well, the --

REP.: Chairman, the --

REP. BERMAN: Go ahead, (Chris ?).

MR.: Congressman, on your first question, we dealt with that specifically in what -- and your discussion draft is called Section 7 on page 8 saying the provision of this act shall not be affected by any treaty obligations of the United States. That means the President could not rely on a treaty in order to avoid the consultation provisions of this act.

REP. BERMAN: Thank you.

MR.: Now, with respect to what is the penalty, what is the sanction, it's diminished political support for a foreign engagement that the President might think is important to the national security of this country, because if he doesn't comply with the law that's as plain and as clear as this and on the books, then he would suffer the political consequences of not doing so. We've already answered the question about whether we think the federal courts would grant jurisdiction of a dispute between a member of Congress and the President for his refusal to abide by the provision. But he would suffer, I think, substantial political damage.

MR.: We believe, Congressman Carnahan, that you've got a win- win-win situation in this bill. We think the President will look favorably upon the bill because it frees his hand to address minor armed conflicts. It frees his hand to respond to emergencies. It provides him with specific people in Congress to consult with. Always a big question of who do I consult within the executive branch? This answers the question for him and for the Congress.

We think it's a win situation for the Congress because we empower the Congress to have a joint consultative committee, fully staffed, bipartisan, fully resourced, available to classified information. It has a very clear mechanism for the Congress to vote up or down, and above everything else, it assures the Congress of the United States that it has a seat at the table when the decisions are being discussed. You don't always have that. You will be assured of it with this bill.

It's a win for the American people. We went back 70 years, I believe, to look at poll results, and they show over and over and over again that the American people want this most serious of all questions to be made -- to be a shared decision by members of Congress and, of course, the executive branch. They do not want the decision of going to war to be made by one person, even if that person is the President. So we analyze this statute -- proposed statute -- as a win-win-win situation.

REP. CARNAHAN: Secretary Christopher?

MR. CHRISTOPHER: Mr. Chairman, I wonder if I could take a minute -- not on anyone's time -- to clarify the record. There's been quite a lot of confusion because the discussion draft that you have before you misstates the section -- and the ranking member I think was on to this. If you look at page five where it refers in the middle of the page to section five -- Section 3B -- that should read Section A2 -- sorry, Section 9 of Section 2. And the Section 3A later in that could read Section 9, subparagraph 2.

So that means that if there's a military action described in Section 3B -- that's the exception section -- it becomes longer -- becomes a significant armed conflict that is longer than seven days, then the consultation provision provides -- and that will I think clarify the record and perhaps clarify some of the questions that have been raised. The exceptions in Section 92 are really subject to the consultation requirement if the conflict goes on longer than seven days.

Thank you, Mr. Chairman , for the chance to clarify that.

REP. BERMAN: Yeah.

REP. CARNAHAN: If it morphs into a significant armed conflict than the requirements of consultation -- (inaudible) --

REP. BERMAN: Consultation trumps exceptions after seven days.

MR. CHRISTOPHER: Well, precisely.

REP. BERMAN: Okay.

REP. CARNAHAN: And there's a specific provision in the report that was misprinted in the committee print.

REP. BERMAN: Time of the gentleman has expired. We appreciate the clarification.

The gentleman from Texas, Mr. Paul, is recognized for five minutes.

REP. RON PAUL (R-TX): Thank you, Mr. Chairman. I hear three points that the panel has made, that War Powers Resolution has been ineffective. I agree with that. It should be repealed. I agree with that. The conclusion, though, I don't agree with, that we need a new law.

And I think that's where the real important part comes. When we -- the Congress passed the War Powers Resolution the 1970s, it was motivated by the anti-war people thinking it would help. But the unintended consequence was disastrous, not only the chaos that you described, but the fact that it legalized war for 90 days. That's what it did. It gave the power -- greater power to the President, not less power to the President, and it took away this assumption that Congress had the responsibility to declare war.

The panel says that they do not pretend to resolve the constitutional issue, which is fine. That's not your job. And you reassure us that the court seemed to want to stay away, so we don't have to worry about the courts. But what we should worry about is oath of office and our responsibilities here as Congress people. And that, to me, is the ominous responsibility we have.

But I am reassured by Mr. Baker's comment that if it tilts toward one branch of government, maybe this thing won't get passed. And the way I interpret it -- it obviously does, and I will challenge the panel on this, and then they can answer my comments. And the reason I challenge this is, first, the consultation isn't with the Congress. You pick out a few people, select people, and they're supposed to represent us. No. The responsibility for war is the Congress, not a select group.

So the President starts a war. It lasts a week. He comes to this select committee, and they say okay, sounds like we better do it. Then after 30 days we have this opportunity to vote. And then we vote -- we disapprove the war, and then we have a -- have to have another vote, a vote of disapproval. And so we pass that, and then the President vetoes it.

So what we're establishing here is the power of the President to pursue war with a select committee and then endorsed by the Congress with one third of the Congress because he can veto this. I think this is going absolutely in the wrong direction, and I think Mr. Rohrabacher pointed out earlier -- it's mostly because we don't live up to our commitments. Once again, I think the panel makes the point that we do have the fallback, and the fallback is that we can deny funds. But then we're politically trapped. We never could do that in Korea or Vietnam. It goes on and on because then we get painted as un-American. We don't care about the troops. So once they get the upper hand, they can start the war, run the war, and a third of the Congress endorse the war, get the people in harm's way, and then you're -- said -- oh, you're un-American if you vote against this process.

So I ask the panel show me why this is not tilting power to the executive branch and to a small group of congressmen rather than reestablishing the principle that in this country very precisely it was stated that the Congress declares war. This has no interference whatsoever for the President to act in emergencies. That is clear- cut. We know that, even before the War Powers Resolution.

This doesn't change it. So why is it that -- why am I wrong in thinking that this is not tilting, that this is tilting for the President and against the Congress?

MR. : I think you're wrong, congressman, because if you don't do anything, you have the situation you're talking about. You're not going to have anything, and the presidents are going to do what they consider necessary to protect the national security of the country. And they have the power they claim under the Constitution to do that. And you're not going to be able to do anything about it.

So you're better off, I think, we think, if you consult -- if the two branches consult with each other rather than continuing to knock heads over who has the power, the ultimate power, because we're not going to get an answer to the --

REP. PAUL: Of course, the Congress -- I put most of the blame on the Congress for being derelict in their responsibility. But if presidents just go out and start wars, sure the Congress has something to do -- they shouldn't fund them? If it's necessary, they need to impeach the President.

MR. : (Inaudible.)

REP. PAUL: But this whole thing -- I -- answer my question about one third of the Congress. Actually, a third of the Congress and the President can pursue war. Is that not correct?

MR. : Well, you say that because the President has a right to veto bills presented to him under the -- (inaudible) -- clause. That happens to be in the Constitution. If you don't like that, you can get a constitutional amendment passed that would delete that.

REP. PAUL: I don't -- my --

MR. : I don't think you'll have any success.

REP. PAUL: I'm not arguing that point. I'm arguing whether or not I'm right that one third of the Congress and the President can pursue war. That's the point.

MR. : No, you're not right because you have under our legislation specifically a -- not only a right to vote, but a duty to vote with respect to it. And if it's voted down here in the Congress, you're just on the losing side. That's what that is.

MR. : Congressman Paul, may I -- (inaudible) --

REP. BERMAN: I'm only concerned the votes are going to come, and I want to get as many members as possible.

MR. : (Oh, yeah ?).

REP. BERMAN: So the five minutes has expired, and I apologize. It's a very interesting discussion.

The gentleman from Georgia, Mr. Scott.

REP. DAVID SCOTT (D-GA): Thank you very much, Mr. Chairman, and again, welcome to the committee. I wanted to kind of get to a point -- I think we could get a better understanding if we tried to get an applicable example here, especially within the area of what is a significant armed conflict? And I think that most immediate to us will be a decision coming -- affecting a terrorist attack, a reprisal to a terrorist attack, or an attack from a nation that sponsors terrorists.

Within your proposal you are exempting limited acts of reprisal against terrorists or states that sponsor terrorism and not considering that as a significant armed conflict. So let's suppose if we said -- where would this fall? If, for example, we were to retaliate and had evidence that a terrorist was on the border on Pakistan and would involve the President making the decision to send armed forces into Pakistan -- where would that fall within your proposal as far as consultation?

MR. : Congressman, if that response lasted longer than seven days, the consultation provisions would be required. If it simply lasted a day or two, that would be within the exemption. But the theory of our bill is that almost any action that is significant would be seven days or longer, and that would bring on the consultation provisions, and thus, invoke a whole series of things that follows on the consultation provisions, that is, it goes up or down by the Congress.

REP. SCOTT: And so that would trigger the President coming and meeting with a select committee. And now, would you share with me under your proposal -- how are the members of this Joint Committee for Consultation selected?

MR. : They're selected in the statute by the leaders of both the House and the Senate and the chairman and ranking member of the key committees, a group of about 20; chairman and ranking member of this committee, chairman and ranking member of the Senate Foreign Relations Committee, the Armed Services Committee, the Intelligence Committee, and so forth. So you get a group of congressional leaders previously designated so the President will know who he should consult with.

REP. SCOTT: Does the President have any input into -- before the selection is made as -- who is being considered?

MR. : No, the selection is made deliberately by the legislation itself, because in the past the tendency by the presidents, naturally enough -- to consult with people who they think will agree with them. And this sets up the body that provides people from both parties and the key members of Congress on this particular issue.

REP. SCOTT: Now, in Section 5 of the legislation it calls for a congressional vote of proven military action 30 days after it starts. (If -- ?)

REP. BERMAN: Mr. Scott, let me just interject one second. I am advised there was time -- (inaudible) -- mistake, so you have a minute or a minute and a quarter left notwithstanding what the clock shows.

REP. SCOTT: Okay, but thank you very much. Thirty days after it start -- and if Congress does not approve of the military action, it could submit a resolution expressing its disapproval. My point is submitting a disapproval resolution seems unnecessary when Congress can simply practice its constitutional rights and deny funding. So why is there a need for this additional measure?

MR. : Well, Congress could certainly do that.

REP. SCOTT: I can't hear you -- (inaudible).

MR. : Mr. Scott, Congress could certainly do that, but we thought it was perhaps more propitious to require first a resolution of disapproval, and then Congress can act within its internal rules to deny (sending it ?). Congress can deny funding at any point, but we thought from the standpoint of public impressions that it's a better theory to have the Congress go ahead and exercise their power of disapproval. Hence, the American people would know that Congress had not only failed to approve, but they had disapproved. Then you could move to denial of funding if that was the will of Congress.

REP. SCOTT: Appropriation bills often take a little time to come before the Congress. This would require the Congress to act rather quickly.

REP. BERMAN: The time of the gentleman has expired.

The gentleman from Indiana, Mr. Burton. We're going to try and take Mr. Burton and Ms. Lee, and -- but I understand the witnesses have to leave by 12:15. Am I correct in that, my assumption?

REP. DAN BURTON (R-IN): (Off mike.)

REP. BERMAN: You don't want to come back and spend the afternoon with us? (Laughs.)

REP. BURTON: (Off mike.)

REP. BERMAN: All right. Well, if that's the case, then they will be -- unfortunately, the hearing -- we'll -- we will have to adjourn after our next two questions.

Mr. Burton.

REP. BURTON: Mr. Chairman, I'm going to just ask one question because I don't want to -- I want -- I know you want to get as many people involved as possible. This all boils down to -- there's going to be consultation, but as far as teeth is concerned, the only real teeth in this is public opinion.

MR. : Right.

REP. BURTON: If the President is hell-bent to go ahead with a conflict, even though he has a strong disagreement with the Congress, he's going to be able to do it. And so the constitutional authority he has is in no way impaired.

MR. : That's correct, congressman. That's right.

REP. BURTON: Okay, that's all I want to know. I wanted to make sure. Thank you.

REP. BERMAN: Gentlelady from California.

REP. BARBARA LEE (D-CA): Thank you very much, Mr. Chairman. Let me reiterate again my -- (inaudible) -- and understanding that based on Section 8, Article 1 the Congress has the authority to declare war. I've been listening to what you have said with regard to the constitutional issues, and that's not what this is about. It's unfortunate that the Supreme Court hasn't ruled because it almost makes this Constitution a mute and -- but I still believe in it.

And so let me ask you how this would work if, in fact -- and I'm going to go dead to the resolution of September 14th that I cannot vote for. The Congress authorized the President to use force. It was a blank check. All it said was -- a resolution that said "against any organization, individual, or country connected to 9-11 or that harbored those connected with 9-11." It was a total blank check three days after the horrific events of 9-11.

How would this kick in, because at this point would this body, this consultative process sit down and say Mr. President, what countries are you talking about? Mr. President, how long do -- will this resolution, this authority be enforced and in effect? Would this body say Mr. President, will this be in this region only? Mr. President, would this allow for terror? Mr. President, would this body be able to define these blank checks that we've been given to the Administration to use force?

MR. : No.

REP. LEE: Because I'm concerned about this resolution still being in play, quite frankly.

MR. : No, congresswoman, it wouldn't, but the Congress, of course, could come forward any time it wants to and limit the scope of that prior resolution. Anything that's -- our proposed statute is forward looking. It doesn't have application to anything that's happened before, except to the extent that something happens that is a -- that meets the definition of significant armed conflict. Then there would be an obligation on the President for the ongoing consultations that we call for.

REP. LEE: So it's not retroactive at all.

MR.: No, it's forward looking.

REP. LEE: Okay, but had this resolution been -- had your bill been the law on 9-14, how would that have worked with the consultation?

MR. : Well, assuming if it had been the -- if it had been -- if it had been in law then, assuming that -- I assume there would've been consultation, as we call for here, between the President and the Congress, and if you'd still pass that same resolution, that resolution would be effective, but the President would have to have continuing consultations with you as it was implemented.

REP. LEE: So if the President wanted to use that resolution to go into another country, any country, would the President have to say okay, Congress, this is where we're going now in terms of the use of force and military action?

MR. : The President has to spell out the scope and what he thinks the duration of the conflict may be.

REP. LEE: And where?

MR. : I don't think we say where. I think we say scope and duration. It could be covered under scope, I suppose.

I do want to comment, Ms. Lee, on one of your -- we've had -- cited to a -- several times today as if it's definitive that the power to declare war resolves the constitutional question. It does in the mind of a lot of people. But the other side of the argument is that the commander in chief phrase resolves the question for people on the other side of the issue. And they both take their positions with equal intensity. And that is an argument that has proceeded for over 200 years in this country.

Now, as the secretary has testified, we said we just couldn't solve this -- (laughs) -- problem on the commission. We wanted to find a way to improve consultation when you're confronted with this grave question.

REP. LEE: I understand that, and I get --

MR. : So it's a very limited bill --

REP. LEE: Yes.

MR. : -- and it does not deal with this constitutional -- (inaudible). Yeah.

REP. LEE: No, no, I understand that, and I'm just saying, though -- I'm trying to see how this would work --

MR. : Yes -- (inaudible).

REP. LEE: -- because as a member of Congress, I'm of the -- (inaudible) --

MR. : Right. I was responding to your early comment about -- (inaudible) --

REP. LEE: Yeah.

MR. : -- which others have made here. Quite frankly, I have a good bit of personal sympathy for that having served in a legislative branch. But to suggest that that sentence in the Constitution resolves the question is short of the mark.

REP. LEE: Thank you -- (inaudible).

MR. : Mr. Chairman, may I just add that I -- this bill, congresswoman, will not satisfy the absolutists on either side of this issue, the congressionalists who think only the Congress has the power, or has the preeminent power, nor the executive branch of people who think the President should have totally unlimited scope. But the fact of the matter is that over quite a number of years troops have been sent abroad 264 times. War has been declared five times. So we're facing -- we're trying to deal with a situation that we faced and to increase the cooperation and consultation between the two branches.

REP. BERMAN: Are you measuring against what you believe, or what the reality is? (I just think -- ?)

MR.: What the reality is.

REP. BERMAN: That's the first question one has to ask in this.

MR. : It's what -- we're trying to deal with the reality, and we are expressly saying look, we're trying to do it in a way that doesn't diminish the ability of either branch to make their constitutional arguments.

REP. BERMAN: You're now being called for four votes. It's less than five minutes to make the vote. I understand your time constraints.

I think it's been a fascinating hearing. I'm very sorry a number of colleagues were not able to ask questions, but I don't see practically speaking how we can get back if you have to leave at -- in a half an hour, because we'll not have those four votes. It'll be at least 12:30 before we'd be able to get back. Am I accurately describing the situation?

MR. : We reluctantly agree, and we apologize for not being able to be available later than that. I can stay as long as the -- as long as the committee would want to ask questions, but it doesn't seem possible.

MR. : Mr. Chairman, I can't speak for the secretaries, obviously, but there would be those of us on the commission I know that would be happy to return if some members wanted to discuss this further. We're deeply appreciative of the interest of the committee in the proposal, and we want to make sure that we respond to all questions that all members have. So if it requires a second hearing, I think we would be responsive.

REP. BERMAN: I think either a second hearing, questions, perhaps we submit in writing, or an informal discussion of these issues at a future time will be the better course than --

MR. : We would be delighted to do that, Mr. Chairman, particularly -- we have a lot of our commission members who live up here in the Washington area, and it would be easier for them to come, and I know Chairman Hamilton would be pleased to, so if that would be your desire, it would be ours as well.

REP. BERMAN: (Good ?).

MR. : We'll get back in touch.

REP. : Mr. Chairman, if I could have a -- (inaudible) --

REP. BERMAN: Well --

REP. : -- opportunity for -- a privilege just to simply welcome my constituent, who I claim to be my constituent from Houston, Texas, Mr. Baker, and to welcome all those who are here and thank him for his presence here today. And I was looking forward to being able to question -- so I'm going to hope he will come back.

Thank you. I yield back.

REP. BERMAN: Thanks a lot.

MR. : Sent it in writing.

REP. : Thank him for his service.

MR. : Send it to us in writing, congresswoman. We'll respond.

REP. : (Laughs.)

END.


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