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

Interview

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

REP. DELAHUNT: The subcommittee will come to order.

I feel like I'm in law school right now, a graduate program, and hopefully I won't be around for the final exam. This is a certainly star-studded panel of scholarship and probably some of the most respected legal scholars in terms of these issues anywhere in the country. We all have you here, and it's, I'm sure, going to be informative.

In 1990, one of American's leading constitutional scholars had this to say about the War Powers Resolution. These are his words; I'll try to read them with the appropriate tone. "No modification of the resolution will, in itself, ensure that the collective judgment of the Congress and the president will apply to the introduction of United States armed forces into hostilities. The most that a statute can do, no matter how artfully drawn, is to facilitate the efforts of individual members of Congress to carry out their responsibilities under the Constitution. To do that requires understanding, and it also requires courage and the fortitude to stand up to those who equate criticism with lack of patriotism. For a Congress composed of such members, no War Powers Resolution would be necessary. For a Congress without them, no War Powers Resolution will be sufficient."

That scholarly exposition mirrors the analysis presented by my friend and distinguished Ranking Member Mr. Rohrabacher in our first hearing on this topic. I believe that it poses the essential question for us as we continue in this series of hearings on the issue of war powers for the 21st century and as we focus in particular on the changes in the War Powers Resolution that has been proposed by our colleague Walter Jones in House Joint Resolution 53.

The question is, do we need a change in the congressional culture so that more members become convinced of their obligation to be partners with the president in the most crucial of all national decisions, the decision to go to war? Or do we need a change in the process by which we ensure that Congress meets its constitutional responsibilities? While, as most things in life, I'm coming to the conclusion that we need a little and perhaps a lot of both.

I wonder what the distinguished author of that 1990 treatise would say to my conclusion. And fortunately, I'm going to be able to find out because it's Michael Glennon, a professor at the Fletcher School at Tufts University and the former counsel to the Senate Committee on Foreign Relations and who is one of our witnesses today.

But first, a bit of history is in order. The confluence of the war in Vietnam and President Nixon's unparalleled claims to executive power provoked a response by Congress that led to the enactment over his veto of the War Powers Act. However, Congress since then has not only abdicated its constitutional responsibility but also failed to insist on compliance with the war powers legislation that it had enacted by an overwhelming majority.

The truth is that the War Powers Resolution has never really worked. In fact, according to the Congressional Research Service, there have been over 120 presidential filings consistent with -- and that is a legal term of art -- consistent with the War Powers Resolution but only one that started the 60-day clock for congressional approval pursuant to it. And in at least a dozen other cases, combat took place with no notification whatsoever.

Now we find ourselves at a different moment in time with another war, another president and another effort to usurp congressional authority, at least from my perspective. The administration has claimed that upon the expiration of the United Nations mandate that expires at the end of this year, the only plausible, legal basis for our presence there, American military forces can continue to engage in combat without the president returning to Congress to secure new authority.

In large measure, the administration bases this position on the 2002 congressional resolution that authorized the use of force to remove the threat posed by the government of Saddam Hussein. My comment at that time, and I'll repeat it now, is that this is just patently absurd on its face. It's an interpretation of the 2002 authorization that has no basis in fact, and I consider it an affront to the constitutional role of Congress.

I recently introduced legislation with Congresswoman Rosa DeLauro that calls for the extinction of the U.N. mandate and requires that any agreement authorizing U.S. forces to fight be approved by the United States Congress if all the argument about congressional and executive war powers is not simply an academic exercise and debate but a very real one and one that we will be facing shortly here in this institution. And would submit that now more than ever is the moment in our history to engage in a public discourse on this issue.

Now let me turn to my friend from California for any opening remarks he may wish to make, Mr. Rohrabacher.

And thank you for the Red Bull, by the way. (Laughter.)

BREAK IN TRANSCRIPT

REP. DELAHUNT: Thank you, Mr. Jones.

And we're joined by my friend and colleague from North Carolina Mr. Miller. And I understand he will not make an opening statement.

Let me begin to introduce the panel. And I'm going to ask the panel if they can make an effort to keep their statements somewhat short. My ranking member indicates maybe five minutes, but I tend to be a little more flexible.

Professor Michael Glennon has written not just the treatise that I referred to earlier, which is called "Constitutional Diplomacy," but also four other significant texts in the field and the definitive "United States Foreign Relations and National Security Law" which was just republished in a new edition this year. Mike is joined at the witness table, as I indicated earlier, by a remarkable collection of experts and scholars on these issues.

Bruce Fein is widely recognized as a leading conservative authority on the Constitution. I usually see him when I'm on the Judiciary Committee. He has written on many of the fundamental questions of our time, authoring books on the Supreme Court, the Constitution, international law. And he has also advised numerous countries on constitutional questions, including Russia, Spain, South Africa, Iraq, Cyprus and Mozambique.

Like the rest of our panel, Professor Jules Lobel of the University of Pittsburgh Law School is a leading legal scholar and author, including a handbook for lawyers on civil rights litigation, a collection of essays on the Constitution. But in addition, he's perhaps the leading American litigator on the issue of war powers, serving as the attorney in such key court challenges as our former colleague Congressman Tom Campbell's suit against President Clinton's decision to wage an air war against Yugoslavia over its actions in Kosovo and Congressman Ron Dellums' suit to force President George Herbert Walker Bush to come to Congress for approval to drive Iraq out of Kuwait.

Edwin Williamson, who is currently the senior counsel at Sullivan and Cromwell, served on the distinguished panel on the war powers put together by the Constitution Project whose co-chairs we heard from in the previous hearing. Mr. Williamson wrote the dissenting opinion to the majority (report ?) which I remind the subcommittee served as the basis for Walter Jones' proposal. He also has been the legal adviser at the Department of State.

And it would almost be blasphemy to hold a view of constitutional thought on this issue without the one person who everybody on the staff interviewed while seeking witnesses this year and simply said, he had to be here -- Lou Fisher from the Library of Congress. He's got such a long resume, I'm not going to read it.

But welcome, gentlemen, and please proceed. Why don't we begin from left to right or from right to left.

Mr. Williamson.

BREAK IN TRANSCRIPT

REP. DELAHUNT: Boy, that was perfect timing -- (laughter) -- because we have to recess for a vote. My understanding is there's only one vote, and that's the last vote of the day. If you could indulge us, we'll come back within, say, 15 minutes. And we'll try to wrap up rather quickly. But your testimony collectively was terrific. And we shall return.

(Recess.)

I'm just trying to get Mr. Rohrabacher's attention.

Let me say thank you to all of you for indulging us. I don't think our other colleagues are going to be returning. Why don't I just go right to Dana for his questions. We're going to try to make this brief.

Let me ask you -- well, let me make a request which would be to return maybe separately, independently in the course of the next three or four months because the committee will make an effort to navigate the shoals of this particular issue. But it is of such consequence and importance, I really feel a profound commitment to make the effort. Being a pragmatist, I recognize that there's diversity of opinion, as evidenced by your testimony today, some more clear than others. But even once we make an effort to get into the weeds, so to speak, we're going to need the collective wisdom that you offer us. So we will be reaching out. And you can be assured that there will be requests for you to return to the committee on this issue and those where there's a clear nexus.

Mike Glennon and I both talked about where we're heading in terms of the exploration or the purported or intended exploration of the U.N. mandate come December 31st of 2008 and its applicability to the use of American military forces in Iraq subsequent to that. He takes a very clear position that even the U.N. mandate is insufficient as a legal basis. But I think it's very, very important because I think -- I don't think, I know -- that this will become an issue of some attention over the course of the next six months. It's already emerged as an issue among the remaining three presidential candidates.

So I think it will be important for this committee and other committees in Congress to address it.

But with that, let me turn to my friend from California.

BREAK IN TRANSCRIPT

REP. DELAHUNT: Would the gentleman yield for a moment? I'm glad that the gentleman has defined the war against radical Islam strictly to the geographical boundaries of Iraq. I don't think that that's what he intended.

(Off mike commentary.)

Well, that's one. I mean, the next is Iran, and the next after that will be Pakistan. I think the point is --

REP. ROHRABACHER: It's never ending, you're right. That would be a never-ending scenario.

REP. DELAHUNT: And when the gentleman talks about good versus evil, would the gentleman agree that at least this body should have the choice as to which evil we will focus our efforts? I mean, Saddam Hussein certainly was not anyone to be admired. But we currently have some allies that certainly don't fit into the category of warm and fuzzy teddy bears.

REP. ROHRABACHER: (Laughs.) Right.

REP. DELAHUNT: You know, one can think of Islom Karimov where I think it was Admiral Mullen recently visited to discuss maybe utilization of an Air Force base.

REP. ROHRABACHER: Right.

REP. DELAHUNT: But in any event, I'm going to get back to it because I think it's much more interesting for us to hear from them.

REP. ROHRABACHER: And on Karimov, I know Karimov, and I'm very happy that after 9/11 when our military was going to try to come into Afghanistan from the southern border using the northwest provinces as their staging area for having divisions that I played a role in talking to Mr. Karimov and getting our government aimed at the city of Tarmaz. And Mr. Karimov allowed us to use that base of operations to help the northern alliance retake Afghanistan from the Taliban who had been using Afghanistan to slaughter thousands of Americans (sic).

However, later on, Mr. Karimov, you know, I told him all the time that we believe in democracy. And later on when Karimov did not participate in reform and actually was sort of going the wrong way, I personally was the first one to step up and say he should step down, and we lost our base. But that was after we had driven the Taliban out. And I think it was --

REP. DELAHUNT: And I'm sure it was after he committed the massacre of some 1,000 civilians in Andijan --

REP. ROHRABACHER: That's right. And when he did that, we stepped back.

REP. DELAHUNT: -- and committed atrocities that rank him in the hall of fame of thugs and terrorists.

REP. ROHRABACHER: But with this said, it was a good thing that we were able to use Karimov's territory to drive the Taliban out of Afghanistan. And the 1,000 people he killed, that is exactly why we shouldn't have had a long-term relationship.

REP. DELAHUNT: Also we allied ourselves with Saddam Hussein from 1980 to 1988 and slaughtered a United Nations resolution condemning him for the gassing of the Iraqi Kurds in Halabja.

Anyhow, I think that our colloquy should end.

Mr. Lobel.

BREAK IN TRANSCRIPT

REP. DELAHUNT: If the gentleman would yield. I think the question is, is my friend willing -- I think with the exception of Mr. Williamson, I think the panel may agree with me when I say that, is the gentleman suggesting that the constitutional scheme, the constitutional order that was designed by the Founders ought to be abrogated because of exigent circumstances or it makes it a lot easier to do? My sense is that the Founders, in the course of their debates, were very uneasy with power residing in a unitary executive. I am also. And I think much of what we've seen that I disagree with over the course of the past seven years is a result of that particular view of the constitutional order.

I think I do agree with the gentleman and with others on this panel that we have failed. This institution has failed. We have not accepted the responsibility. And that's why, in my opening remarks, I talked about a culture. But that has to be influenced and that has to -- and I think these kind of hearings are really pieces of an effort to impact that culture. And the forthright statements and testimony that's been given here today adds to that. We need this badly, this debate. This is the beginning, I hope, of congressional courage because I think it was former Congressman Mickey Edwards who said this is not about congressional prerogatives. It's a burden, and we can't keep ceding it to the executive. Whether that executive be Republican or Democrat is irrelevant. This is about the constitutional order.

And to suggest that we can do something simply by, well, we can always stop it after -- what gets out of the barn? The cat gets out of the barn or the cow gets out of the barn? (Laughter.) Thank you. The gentlewoman from Texas knows all about cows, the cow's a cat. But that's the point.

REP. ROHRABACHER: The cow is not in a bag.

REP. DELAHUNT: But that's the point. I mean, you talk about bureaucracy. Well, you know what? You're talking about -- and Congress is described in many ways, but it's certainly not a bureaucracy. And I think it demeans the institution to say that, well, you know, if you can't do it but the executive is aware of all of the threats that are existential in terms of our national security. I have to tell you, I haven't been impressed with the decision-making process in the course of the past seven years.

And I wish and I recognize the fact that the Bush administration came and did seek and secured congressional authorization. So I'm not debating that.

REP. ROHRABACHER: Mr. Chairman?

REP. DELAHUNT: Yes.

REP. ROHRABACHER: If I could, I have got to go catch a plan for California. It's been a very great discussion, and I'm looking forward to our next series of hearings. And I'm sorry that I can't be here for this exchange because I think it's very valuable. So thank you very much for holding the hearing.

REP. DELAHUNT: Thanks, Dana, and bon voyage, safe trip.

BREAK IN TRANSCRIPT

REP. DELAHUNT: I don't know whether it was Dr. Fisher or Mr. Lobel, but one of you made the statement that there has not been a single instance of hostilities which would have warranted the kind of approach that Mr. Rohrabacher would have made.

MR. LOBEL: (Off mike.)

REP. DELAHUNT: Hit the button again. Thank you.

MR. LOBEL: If you look at the history over the last 30 or 40 years, all of the uses of force that the president claimed are so essential to national security, in each of those cases there could have been time to come to Congress and get congressional authorization. None of them was such an emergency that Congress couldn't have been involved. The only question --

REP. DELAHUNT: Which we did in the case of Iraq.

MR. LOBEL: Right. And the only question is then, why not go to Congress? And the reason you don't want to go to Congress is because Congress is slow, Congress might be divided. But the point is is that if Congress is divided --

REP. DELAHUNT: Congress is a constitutional nuisance to the executive.

MR. LOBEL: Yeah, that would be what I would say. But it's a nuisance which the Framers thought was an important check on unilateral war-making.

REP. DELAHUNT: This goes to the point that was made by Dr. Fisher. It is about values, checks, balances.

MR. FEIN: The value that the Constitution chose was more in favor of peace and less in favor of war. And the constitutional Founders knew the executive branch has an incentive for war, it has an incentive to inflate danger because it gets more power, it gets more fame, it gets people to rally behind them. That's why institutionally it's more dangerous to have the branch of government that will profit by war decide on whether it ought to exist.

REP. DELAHUNT: Well, isn't that reflected in Washington's oft- quoted statement regarding entangling alliance.

MR. FEIN: Yeah, in his farewell address about avoiding entangling alliances.

REP. DELAHUNT: Let me get to Mr. Williamson.

MR. WILLIAMSON: Thank you, Mr. Chairman. I don't know exactly where to start.

REP. DELAHUNT: Well, let me start with a question for you, and then we can see where your co-panelists come out on this. In your statement, you state that the president has the authority to use force in defending against threats to our national interest. Now, the assessment of the threat and the assessment of our national interest are you suggesting is exclusively within the executive? And his power to respond to that is unfettered by any check or balance in terms of the Congress and I would suggest the judiciary?

MR. WILLIAMSON: Let's come back to the judiciary question. No, that's not what I'm saying. I'm just saying that the check on it is the power of the purse. And if you think the president has made a mistake in his or her assessment, then the thing that you do is you do not provide the funds for it. I mean, the Constitution does not provide -- says -- that there shall not be a standing Army. But we clearly have one because every year the funds are appropriated. And as you do that appropriation, if you don't want them being used for a specific purpose, then it seems to me that you pass your funding that leaves that out.

Now, granted, if you're going to try to do a funding of more than just that, then you may run the risk of a veto of the overall funding. And it may take two-thirds to override that and get it in a particular (write-up ?). Seems to me you go in --

REP. DELAHUNT: Well, we're having problems with this. Let me give it another shot. I just want to be clear about your position.

Let me rephrase it. Mr. Rohrabacher is adopting the Williamson approach. They mirror image each other. Or what you're saying is the implicit in the funding is the authorization.

MR. WILLIAMSON: Yes.

REP. DELAHUNT: Okay.

MR. LOBEL: As a constitutional matter --

REP. DELAHUNT: It's not working.

Hello? Hello?

MR. LOBEL: I've got it on.

REP. DELAHUNT: Right.

MR. LOBEL: As a constitutional matter, the problem with this approach is it writes the declare war clause out of the Constitution. It says essentially the president can go to war whenever he wants subject to Congress' power over funds which have nothing to do with the declare war clause or all of the war powers of Congress. So it takes a whole set of powers given to Congress and says, in today's world, this is meaningless because what we're going to do is not follow that approach. We're going to let the president go to war and let Congress decide whether to fund it or not.

MR. FEIN: But I think in addition --

MR. LOBEL: One last point. I think in addition to Mike Glennon's point, which I think was excellent, is another point which is if you say the president can use war in Iraq or in Iran or wherever without congressional approval, what do you say to the families of the soldiers who are killed and then Congress says, well, okay, we'll then later go back and fund it? Before you send any American troops into combat, shouldn't they know that the people, that the Congress and the president are behind them? Or do you want to send troops into combat and then say, okay, we'll now fight about the funding? I don't think that is a reasonable way for any society to go into war.

MR. WILLIAMSON: I think that is a splendid --

(Cross talk.)

-- very important policy issue. And that's why, for three of the last four major uses of force, the president has gone to Congress and said, I want you onboard.

MR. LOBEL: But the curious thing is that the Constitution seems to be written to give Congress the power to initiate hostilities.

MR. WILLIAMSON: I'm sorry. There is a basic disagreement as to what "declare war" means. And you and I disagree as to what it means. It is not code. Congress talked about making war. The had the power of that and mainly reduced that to just an element, and making war would be the initiation of hostilities, would include declaring war, which changes your relationship with your -- (inaudible) -- and so forth. And they took that, and they put it in a clause that deals with other things that don't really go to the basic use of force but are things that define your relationships to other nations.

MR. LOBEL: But your main argument, as I read it, is a policy argument that we want to give the president this power because we need to have a president who's strong in the world with all these threats. But then you say, as a policy matter, the president should go to Congress, generally.

REP. DELAHUNT: But that's at a policy matter, not as a constitutional requirement.

(Cross talk.)

Let me go to Dr. Fisher.

MR. FISHER: Let me add, when we talk about values, we're talking about deliberation. The Framers, as a constitutional matter, would have you, as the elected officials, deliberate on policy. You wouldn't say the president is smarter or he's got better aides.

REP. DELAHUNT: Well, we know he's not smarter.

MR. FISHER: We know he's not smarter. (Laughs.) But once you go down this road of saying that Congress is a little bit slow and doesn't write the bills the way the executive branch wants, once you do that in the field of national security, national security swallows up everything. And you know that every department -- domestic or not, Agriculture, you name it, Homeland Security -- suddenly you go in that direction, and what's the point of even electing people if they're not part of the deliberation process?

REP. DELAHUNT: But that's the value that you're referring to.

MR. FISHER: Yes.

MR. FEIN: Mr. Chairman --

REP. DELAHUNT: That's the relationship.

MR. FEIN: -- could I a couple of things? First, it's not just clear constitutional intent that the Founders in 1787 and Mr. Madison had no ambiguity about what declaration of war meant. It meant the decision to decide whether the cause justified use of military forces against an enemy. And James Madison was there in 1787. None of us were. We should trust on his recollection it wasn't disputed.

Secondly, with regard to the situation of enabling the executive branch to initiate combat and then relying upon Congress to stop after the fact if they don't want to fund it, oftentimes that's not feasible. It compromises the options to Congress. And I think the current situation in Iraq is precisely that. We've gotten into a quagmire there. The president has gotten us into a situation where they're all bad choices. There should have been much clearer and complete deliberation at the outset. That's where the critical decision is being made because oftentimes it's too late afterwards. They're all bad avenues.

Lastly, why is it that the Founding Fathers would care so deeply about involving Congress in the decision of moving from a state of war to peace? It's a simple proposition often forgotten. A state of war makes it legal to kill people. It sounds harsh, but that's what war is -- legalized killing. Those are profound decisions to be made. And the Founding Fathers wanted that to be made through a collective process, even if it were slower.

And I think you're accurate, Mr. Chairman, in suggesting this history of errors in the use of military or force is a history of endogamous thinking within the executive branch. Think of Bay of Pigs. President Kennedy said, I wish, you know, Congress would have told me how stupid this was. All the super experts there got around the table and said, oh, yeah, everyone's going to overthrow Fidel Castro. We only need this amount of force. And they were all wrong.

Everyone in the current administration, Mr. Chalabi is going to be the George Washington and Tom Jefferson and James Madison of Iraq. We don't have to worry after we get rid of Saddam. And they were all wrong. There wasn't any clear involvement of another branch which didn't have the same incentive of the executive to go to war because there wouldn't follow all the honors and emotions.

REP. DELAHUNT: I'm going to go next to the gentlelady. I'm going to ask her to take the chair because I'm on my way to the Middle East right now.

But I want to come back to the consultative committee. You all seem to dismiss it with the exception, I think, of Mike Glennon, and I think maybe it was Dr. Fisher or Mr. Lobel about the Gang of Eight. And I agree because I know that if I walked into a meeting and was briefed on the terrorist surveillance program, I'd be sitting there saying, oh, I guess. The kind of analysis that was, I think, appropriate really required an in-depth understanding, review, examination and reflection.

That's not what happened, I can assure you. I wasn't there, but most of my life I was in law enforcement and, you know, familiar with the arcane and sometimes, you know, rather esoteric subtleties that occur in terms of electronic surveillance and wiretaps and the various courts, et cetera. If you are a civilian and are new to that, it gets very, very confusing.

And I think it was you, Professor Glennon, that made the point. As I look at the legislation -- and again, being a realist in terms of what could come out of these series of hearings that we held -- is having a committee, a consultative committee, that is fully staffed, that has access to experts such as yourself, that is an ongoing and standing committee -- let's make it a bicameral committee -- that would clearly be able to foresee those potential incendiary situations that tragically appear on a regular basis in terms of the global landscape, I think there might be some value to that. Clearly, it would require a willing executive.

But it's interesting. As I look at the current field -- and I'm going to digress a little bit -- I think that the three candidates might very well be the kind of executives that would understand and appreciate the significance and the importance of, whether it's policy as Mr. Williamson wishes to categorize it, or would have an appreciation of the constitutional relationship. Any ideas?

MR. LOBEL: I think the key is getting an independent check. That's the point of Congress. If you could get a consultative committee to consult, as you said, that would really be independent, that wouldn't be sort of captured in the way so many of these agencies and committees are where the executive says, well, you're one of us now, and we're relying on you. That seems to me the key to it.

MR. : The objection I have to it is that the Constitution gives to all of Congress the decision whether you need to go to war, not on some subgroup, not some consultative group. And I think any junior member who's just been elected has just as much right as the speaker of the House or anyone else to make that. So Congress is weakened once it starts -- the Gang of Eight, as you know, was unfortunate because it's, of course, the leadership and the intelligence committees. And the Judiciary Committee with jurisdiction over FISA Court --

REP. DELAHUNT: But I'm not suggesting that it would only be that committee that would weigh in in behalf of Congress. But just to have, you know, the information vetted in a timely fashion with members of Congress and a professional staff and experts and those resources necessary clearly, I think, would provide to the executive a lead of the validity or the legitimacy of the policy considerations and also benefit members of Congress in terms of the basis on which the executive would go forward.

With all due respect, I mean, when I think of the famous 16 words at the State of Union, just a cursory review of the documents would have revealed that many of them were just outright forgeries and had absolutely no substance.

MR. : Well, we have the intelligence committees, supposedly, with that capability.

REP. DELAHUNT: No, but you know, the truth is when you have members that have the kind of schedules -- and all of you see what happens here, okay -- with the kind of schedules, we need to have, I think, something that is not a super intelligence committee but has policy implications and is just not reacting and has a different stature and has a different role and responsibility in terms of the policymaking deliberations of Congress. And I would never deny any member, how junior or how senior, the right to vote on an issue of the order of magnitude of what we're discussing. I don't know, maybe I'm looking for --

MR. FEIN: Mr. Chairman, I think the critical element here is getting access to information. Is the executive branch going to desist from claiming executive privilege, state secrets? They're viewing all the information. They have so much information, if they want to feed you a bill of goods, that's what you'll get. And unless you address that other issue, which is very persuasive and far beyond what we've got here, you don't have any independent check because you're just ratifying what's pre-cooked. It's called -- (inaudible) -- cooking the books. You remember Mr. Gates got turned down once to be head of the CIA -- chief -- because that's what was done when the CIA was told, hey, cook the books toward this policy reason. And the president is going to do the same thing unless you also complement this idea with access to that information.

REP. DELAHUNT: And I don't think we'll ever do that because the National Intelligence Estimate that was available in October 2002, the second sentence said Baghdad has chemical and biological weapons. There's nothing in the report to support that. So someone decided in the key judgment section, we need a real screamer here to get attention. So that was false information. And we do not know today, so far as I know, no one -- who did that second sentence there? I don't know if it was the experts who did the report. But I think Congress has great capacity to be misled and misinformed by the executive branch.

MR. LOBEL: I want to just raise one other issue of independent check. We've ratified the U.N. charter. And in the U.N. charter, there is an independent check with the Security Council. Yet over and over again, you hear, well, we can't rely on the Security Council. In the Iraq run-up, all these other nations, most of whom were our allies, refused to vote for war, even when we put pressure on them, because they, even looking at what was being said, even looking at Powell's testimony, they said, this doesn't warrant going to war.

Yet Congress did not pay any attention to it. The president didn't pay any attention to it. I think there's this general presumption, well, we don't have to listen to what the world says because we know better.

REP. DELAHUNT: But that is a policy -- you know, those are policy issues.

MR. LOBEL: Well, no, it's not a policy. The treaty -- we have a treaty. We have a law which says we cannot use force except to repel an attack without the Security Council approval. If we're being attacked, we don't have to go to the Security Council.

REP. DELAHUNT: But that goes to the point that the excerpt from Mr. Glennon's book that I read. I mean, if we're not going to have -- and I concur with Congressman Rohrabacher -- if we're not going to have the courage to make what we believe is an informed decision on issues of this consequence, then we don't belong here. We are violating our oath. I voted against the invasion simply because I started asking questions.

There was an individual by the name of Greg Thielmann. And he was over at the Department of State. He was in the Intelligence Bureau there. And I had just noticed in the tenth paragraph of it might have been The Washington Times where he said, no, there's no nuclear program. I called him into my office, and I'll never forget this. I said, you know, it's the development of a nuclear program that is making me very uncomfortable. And he said, I've been doing this for 25 years, Mr. Congressman. And he was just as a-political as you can imagine. He said, there is no nuclear program. In the meantime, we're talking about mushroom clouds.

Well, I'm going to depart. I want to thank you.

And I'm going to ask the gentlelady from Texas Sheila Jackson Lee to take the chair. And I thank her for her attendance.

And thank you all. This has been good. And we hope you all come back.

MR. : Thank you very much.

BREAK IN TRANSCRIPT

Source