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Kennedy Questions Gonzales On Congress' Authority To Stop The Escalation Of War

Location: Washington, DC


Today Attorney General Gonzales appeared before the Senate Judiciary Committee and Senator Edward M. Kennedy questioned him about Congress' authority in the escalation of the war in Iraq. Kennedy stated that the new mission bears no resemblance to the mission that Congress authorized in 2002 and argued that the President should get the proper authority from Congress before sending more troops into Iraq. Kennedy has introduced legislation to this effect - the first bill to be offered related to the surge.

"Our troops are being asked to take sides in a civil war in a country where militias operate with impunity, where sectarian violence is the norm, and where ethnic cleansing is taking place neighborhood by neighborhood. I don't believe any member of Congress would have authorized our involvement in a civil war," Senator Kennedy said. "I've introduced legislation to require Congressional authorization to escalate our involvement in Iraq. The bill would prevent the President from increasing the number of troops unless Congress authorizes him to do so. Attorney General Gonzales, do you accept that Congress has the authority to prevent the President from increasing troop levels in Iraq in the manner I have described?"

Today twenty-three leading constitutional scholars have sent a letter to Congress contending that Congress does have the authority and "far from an invasion of presidential power, it would be an abdication of its own constitutional role if Congress were to fail to inquire, debate, and legislate, as it sees fit, regarding the best way forward in Iraq." The scholars write, "Congress may limit the scope of the present Iraq War by either of two mechanisms. First, it may directly define limits on the scope of that war, such as by imposing geographic restrictions or a ceiling on the number of troops assigned to that conflict. Second, it may achieve the same objective by enacting appropriations restrictions that limit the use of appropriated funds."

Attached is the letter from the 23 leading constitutional scholars and below is a fact sheet of when Congress has used this authority in the past.

Congress' Historical Role in Policing Military Escalation

On numerous occasions over the past several decades, Congress has exercised its constitutional authority to limit the President's ability to escalate existing military engagements by capping the number of American military personnel available for deployment and by refusing to release appropriated funds. It is incumbent upon Congress to exercise that authority to ensure that our men and women are not put in harm's way unnecessarily or without a plan worthy of their great sacrifice.

? In the Foreign Assistance Act of 1974, P.L. 93-559, enacted during the Vietnam War, Congress limited the number of American military personnel in South Vietnam to 4,000 within six months and 3,000 within a year of the Act's enactment.

? The Lebanon Emergency Assistance Act of 1983, P.L. 98-43, required the President to "obtain statutory authorization from the Congress with respect to any substantial expansion in the number or role in Lebanon of the United States Armed Forces, including any introduction of United States Armed Forces into Lebanon in conjunction with agreements providing for the withdrawal of all foreign troops from Lebanon and for the creation of a new multinational peace-keeping force in Lebanon."

? Through the Department of Defense Authorization Act of 1985, P.L. 98-525, Congress prohibited the use of funds appropriated in the Act or in subsequent Acts from being used to increase the number of U.S. military personnel deployed in European nations of NATO. The Act provided that Congress might authorize increased troop levels above the prescribed ceiling upon the Secretary of Defense's certification to Congress that the European nations had taken significant measures to improve their defense capacity.

? In the Military Construction Appropriations Act of 2001, P.L. 106-246, Congress limited the involvement of U.S. military personnel and civilian contractors in counter-narcotics activities in Colombia by prohibiting the use of appropriated funds to expand their presence above specified levels.

? The Second Supplemental Appropriations Act of 1973, P.L. 93-50, specified that none of the funds appropriated by the Act were to be used "to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam or off the shores of Cambodia, Laos, North Vietnam and South Vietnam by United States Forces and after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purpose."

? Congress authorized the use of U.S. Armed Forces in Somalia in the Department of Defense Appropriations Act of 1994, P.L. 103-139, but set a deadline after which appropriated funds could no longer be used to pay for their involvement. The Act specified that the deadline could only be extended if requested by the President and authorized by the Congress.

? In the Department of Defense Appropriations Act of 1995, P.L. 103-335, Congress required congressional approval of "any change in the United States mission in Rwanda from one of strict refugee relief to security, peace-enforcing, or nation-building or any other substantive role" and blocked funding for continued participation of the U.S. military in Operation Support Hope beyond a specified date.

? The National Defense Authorization Act for Fiscal Year 1998, P.L. 105-85, provided that no funds appropriated for fiscal year 1998 or any subsequent year could be used for the deployment of any U.S. ground combat forces in Bosnia and Herzegovina after a specified cutoff date unless the President first consulted with Congress and then certified to Congress that certain conditions existed in the field.

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