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Hearing of the Senate Foreign Relations Committee - Twenty-First Century War Powers

Location: Washington, DC



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SEN. KERRY: (Sounds gavel.) The hearing will come to order.

Today we have the privilege of hosting three of our nations most distinguished statesmen and they are here to discuss one of the most vital questions that comes before our democracy: the question of how America goes to war.

Secretaries Baker and Christopher, and Chairman Hamilton, we're very grateful to you for joining us today and we're very grateful to you for the work that you've put in to try to find a practical solution to this complex problem that has dogged us for decades now. Your experience in government and your firsthand knowledge of this issue and its application make your testimony before this committee today particularly valuable, and we look forward very much to hearing your views.

I'll share a couple of quick thoughts. We all understand what brings us here is the fact that there is a fundamental tension in the way that America decides to go to war: the president is commander in chief of the armed forces while Congress has the power to declare war. But how those constitutional powers interact has been the subject of considerable debate these last years.

Uncertainty over Congress's role in two successive wars -- Korea and then Vietnam -- led to the passage of the War Powers Resolution in 1973. I think it's fair to say it was significantly a reaction to America's longest war, one that pulled the country apart and left many questions about responsibilities and presidential decisions. The resolution, which today's witnesses recommend repealing, has been controversial ever since it was enacted over President Nixon's veto.

The 1973 resolution represented Congress's best effort to try to clarify and make concrete its role in the decision to go to war. That resolution required that the president consult with Congress prior to -- and on a regular basis after -- U.S. forces were deployed. More controversially, the law required that the president withdraw our forces within 60 days of their deployment into combat, absent specific congressional authorization or an extension of the deadline by Congress.

This approach raised important questions. Some believe that imposition of a deadline for withdrawal inappropriately constrained the executive and projected uncertainty to enemies. Others more sympathetic to legislative power in the decision making argued that allowing the president to go to war for 60 days or longer without authorization is an indefensible abdication of Congress's prerogative under the Constitution -- the prerogative of Congress to declare war.

What is clear to all is that the 1973 War Powers Resolution has simply not functioned as intended. Presidents since Nixon have questioned the statute's constitutionality. None have complied by filing a report that would trigger a 60-day deadline for congressional reauthorization.

Over the years, there have been various efforts within Congress, including by this committee, to amend the War Powers Resolution. Nonetheless, the fundamental issue has remained unresolved.

The National War Powers Commission consciously avoided trying to resolve the basic constitutional debate and also avoided trying to define the contours of each branch's powers. And I must say, I respect the pragmatism of that approach.

The commission's proposal is instead the War Powers Consultation Act of 2009. It would repeal the 1973 War Powers Resolution and provide a new framework for interaction between Congress and the president. The proposed statute would require that the president consult with a newly formed joint congressional committee prior to ordering the deployment of U.S. armed forces into, quote, "significant armed conflict" or, under certain circumstances, within three days of deployment. The statute would also create a mechanism to ensure that both houses of Congress vote on the particular military action within 30 days of that deployment.

In their work on this issue, our witnesses today have struggled to grapple with the exigencies of a global struggle against terrorism and the changing nature of America's military involvements which today obviously look very different than they did in 1973.

As one would expect of an effort from a group of statesmen who've tackled some of the world's most intractable conflicts, this is a thoughtful and a formidable effort and it is very much worthy of this committee's further and the Congress's further consideration.

I'm sure that our witnesses will go into more detail on the specifics of their proposal. Again, let me just thank each of them for their contribution, not just to this particular work but to our country's work throughout their public service. It's my pleasure to turn to the ranking member, Senator Lugar.

SEN. RICHARD G. LUGAR (R-IN): Well, thank you very much, Mr. Chairman. As you mentioned, the committee meets today to discuss important questions about the respective roles of the president and the Congress in decisions to use force.

We're really very fortunate to have very dear friends with us today: Secretary of State Jim Baker and Warren Christopher and my colleague in the Indiana delegation for so many years, Congressman Lee Hamilton. Each of them has unique insights into these issues, both from experience in government, from their study as members of the National War Powers Commission. We welcome them to the committee, look forward to their testimony.

Sending members of the United States military into harm's way is perhaps the most significant decision our government can make. We know from long experience that a military mission is more likely to be successful if it is broadly supported by the American people. Joint actions by the president and the Congress in authorizing the use of force can play an important role in building and expressing such support.

In addition, both allies and enemies will be more convinced of the determination of the United States to achieve its objectives for which the force is being used if those objectives are understood to be broadly supported by both branches.

Under our Constitution, decisions about the use of force involve the shared responsibilities of the president and the Congress, and our system works best when the two branches work cooperatively in reaching such decisions.

While this is an ideal toward which the president and the Congress may strive, it has sometimes proved to be very hard to achieve in practice. Today's hearing gives us an opportunity to consider the framework in which decisions about the use of force are made, whether there are ways in which it might be improved.

Questions of how best to harmonize the roles of the president and the Congress on the use of force have proved vexing since the founding of the republic. The framers of the U.S. Constitution designated the president as commander in chief of the armed forces but entrusted to the Congress the authority to declare war.

In the period following the Vietnam War the Congress passed the 1973 War Powers Resolution in an effort to regularize executive- congressional cooperation on the use of force decisions and, in particular, to ensure an appropriate role for the Congress in such matters.

It provides requirements for presidential consultation with and reporting to the Congress on issues related to the use of force and a requirement that the president terminate uses of armed force not specifically authorized by the Congress within time frames specified by the resolution.

The War Powers Resolution has not proven to be a panacea and presidents have not always consulted formally with the Congress before reaching decisions to introduce U.S. force into hostilities, and they've objected to the assertion that inaction by Congress can compel the termination of a military action initiated by the president.

The Congress has not always taken up legislation authorizing or expressing disapproval of presidential uses of force. Both presidents and members of Congress have voiced dissatisfaction with the resolution's operation and practice.

Interaction between the president and Congress related to the War Powers Resolution has also been affected by inherent ambiguities. In today's world, many potential military actions are very small-scale, having a very limited purpose, or target terrorists or other non-state combatants, and the recent rescue operation mounted against the Somali pirates is an example and this combined all three of these conditions.

Does every movement of the military ordered by the commander in chief that might lead to some use of force require congressional consultations? Ambiguity also exists about what constitutes adequate notification and consultation.

On April 14th, 1986, for example, I was called to the White House at 4 p.m. along with other Senate and House leaders. We were informed that two hours earlier United States war planes had taken off from airbases in the United Kingdom headed for targets in Libya. They were due to strike that country at about 7 p.m. During the ensuing two- and-a-half-hour meeting, we received a full briefing and engaged in a detailed conversation with President Reagan and national security officials on the bombing operation and its implications.

In my judgment, this meeting constituted acceptable consultation given a need for secrecy and the possibility that the planes could have turned around had the president encountered strong opposition from the group assembled, but some commentators believed the meeting fell well short of the requirements for full congressional consultation.

The report of the National War Powers Commission proposes a new statute to replace the War Powers Resolution. Under the proposed statute, the president would be required to consult with a newly created joint congressional consultation committee, in most cases before ordering the deployment of the United States armed forces into significant armed conflict. The statute would also require both chambers of Congress to hold a timely up or down vote regarding any significant armed conflict in which the president introduces U.S. forces.

The proposed statute further provides for the president to consult with and report to the Congress regularly during the course of significant armed conflicts in which the United States forces are engaged.

We look forward to the testimony of our witnesses about the issues which the commission has grappled with in formulating this proposal and ways in which they believe their proposed approach would improve collaboration between the president and Congress on decisions relating to the use of force.

I thank the chairman again for calling the hearing and look forward to our discussion.

SEN. KERRY: Thank you very much, Senator Lugar.

Again, we welcome you. None of you are strangers to this room or this table. I must say, looking out at you -- I was looking at you and remarking that none of you seem to have changed. I'm not sure if you think that, but certainly from this side of the dais, whatever you're imbibing down there in Texas and California and elsewhere seems to sit well.

Mr. Secretary Baker, do you want to lead off and --

MR. BAKER: Mr. Chairman, thank you very much.

SEN. KERRY: Thank you.

MR. BAKER: We're very appreciative of the committee's entertaining this hearing today.

SEN. KERRY: Your microphone -- if you could just press the button in the front.

MR. BAKER: First, we thank you for holding this hearing. We thank Ranking Member Lugar for holding this hearing, members of the committee.

It really is a privilege and honor for us to be back in this room and to be before you.

As you have quite accurately pointed out, we're here to discuss the report of the National War Powers Commission, which Secretary Christopher and I co-chaired and on which your former congressional colleague Lee Hamilton served so very ably as a valuable member.

Let me, if I might, start with a little background on the commission and the problem that you have quite accurately pointed out that it deals with, and then Secretary Christopher will outline our proposed new statute.

Two years or so ago, Chris and I were approached by the Miller Center at the University of Virginia to co-chair an independent, bipartisan commission to consider this issue that has bedeviled legal experts and government officials since the Constitution was framed: the question of how our nation makes the decision to go to war.

Of course, we all know the Constitution gives the president the powers of commander in chief and it gives the Congress the power of the purse but also specifically the power to declare war. History, though, indicates that presidents and congresses have often disagreed about the scope and extent of their respective roles in the decision to go to war, and the Supreme Court has consistently shied away from settling the constitutional issue.

So it was evident to us after a few meetings of our commission that what we really needed to try and come up with was a pragmatic and practical solution to this conundrum.

As we put together the commission, it was important, we thought, that we have a very wide range of perspectives and voices, both political and from a policy standpoint, and so our commission includes legal experts, former congressional staffers, former White House staffers and former military leaders.

The 12-member commission, if you look on -- I think you all have a copy of our report with the names on the front page there -- the 12- member commission is equal parts Democrats and Republicans.

After 14 months of study, we concluded, as you stated, Mr. Chairman, that the central law governing this critical decision, that is, the War Powers Resolution of 1973, which was passed over a presidential veto, is ineffective and that it really should be replaced with a better law. It should be repealed and replaced with a better law.

The 1973 resolution's greatest fault, I suppose, is that most legal experts will tell you that it is unconstitutional, although I'm quick to add that the Supreme Court has never expressly ruled on that point.

We happen to believe that the rule of law, which is, of course, a centerpiece of our American democracy, is undermined and it is damaged when the main statute in this vital policy area is regularly questioned or ignored.

The resolution has other problems. It calls for the president to file reports of armed conflicts and then it uses these filings to trigger an obligation for the president to remove troops within 50 -- within -- sorry, 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, no president, Democrat or Republican, has ever 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 by its observance.

Recognizing this, others have suggested amending or replacing the flawed law, but no such proposal has ever gotten very far, typically because most of them have sided too heavily with either the president or the Congress.

A common theme, however, in all of these proposals that runs through them: the importance of meaningful consultation -- meaningful consultation between the president and Congress before the nation is committed to war.

Our proposed statute would do exactly that: promote meaningful discussion between the president and Congress when America's sons and daughters are to be sent into harm's way, but it expressly does so, Mr. Chairman, in a way that does not limit or prejudice either the executive or the legislative branches' rights or ability to assert their respective constitutional war powers. Neither branch is prejudiced by what we are proposing, and in fact, we think that both branches and the American people will benefit from it.

Now, before I turn the microphone over to Secretary Christopher, let me first say how rewarding it has been to work with this fine gentleman and this able statesman and this dedicated public servant. It has, of course, been equally rewarding to once again be working with my former co-chairman on the Iraq Study Group, Lee Hamilton, and your former colleague up here in the Congress.

So Chris, you want to pick up from there?

MR. CHRISTOPHER: Mr. Chairman, Ranking Member, members of the committee, my testimony will follow up briefly on Senator Baker's statement. I appreciate those kind things that Secretary Baker had to say about me. Without going on about it, let me just say it's a lot more pleasant working with Senator Baker than it was working against him. I've had both experiences.

The statute we propose is really quite straight forward. It establishes a joint, bipartisan congressional consultation committee consisting of the leaders of the House and the Senate and the chairs of the relevant committees: this committee, Intelligence, armed forces. Under the proposed statute, the committee is provided with a permanent professional staff and access to relevant intelligence information. This is a new provision and I think one that's quite salutary.

The statute requires that the president consult with this committee before deploying U.S. troops into any significant armed conflict, which is defined as combat operations lasting or expected to last more than a week. Now, for purposes of this statute, "consultation" means providing an opportunity for a timely exchange of views, not just notification.

Within 30 days after the armed conflict begins, Congress is required to vote up or down on a resolution of approval. If the resolution of approval is defeated, any senator or representative may file a resolution of disapproval. A resolution of disapproval will have the force of law, of course, only if it's presented to the president, signed by him, or if it's passed over the president's veto. However, if a resolution of disapproval has not survived the veto, Congress can express its opposition through internal rules.

Mr. Chairman, I recognize that many of the advocates of congressional power argue that Article 1, Section 8 of the Constitution puts the decision to go to war exclusively in the hands of Congress by giving Congress the power to declare war. On the other hand, proponents of the presidential authority point to the fact that the president is the commander in chief under the Constitution. They say that the framers wanted to put the authority to make war in the hands of the government official who had the most information and the ability to execute.

Although both sides of this long-standing, decades- -- indeed centuries- -- long -- argument have good points to make, I would just make three points about these arguments.

First, no consensus has emerged from the debate over the last 200 years. Nobody has won this long-standing argument. Second, I think it's become fairly clear that only a constitutional amendment or a decisive Supreme Court opinion is likely to resolve this debate and neither of these is likely to be forthcoming anytime soon. The courts have turned down war powers cases filed by more than 100 members of Congress, either on the grounds that they are political questions or that the plaintiffs in those actions lack standing to sue.

Third, whatever our commission might have felt about this debate -- and we discussed it for a long time, as Secretary Baker has said -- we recognize that we could not resolve this long-standing issue, and the last thing we wanted to do as a commission was to file yet another report on who was right or wrong and have it gather dust on the library shelves.

Therefore, in drafting the statute our commission decided deliberately to try to resolve this long-standing debate. Indeed, our proposed statute says that "Neither branch, by supporting or complying with this act, shall in any way limit or prejudice its right or ability to assert its constitutional war powers."

Instead of trying to call balls or 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 going to war. We believe that among all the various alternatives -- and we certainly talked about a lot of them -- this proposed statute best ensures consultation. We believe it's a significant improvement over the 1973 resolution, and it's good for the president, the Congress and for the American people.

Now, from the standpoint of the Congress, the statute gives it a much more significant seat at the table when our nation is deciding whether or not to go to war. It provides not only a seat at the table, but it gives the staff -- a permanent staff to the committee and access to all relevant intelligence information. It requires real consultation, not just lip service.

In my experience, the seasoned views of congressional leaders constitute a very vital resource for the president in his decision- making process. Indeed, it's very healthy, I think, for the president to hear the independent opinions of people who don't work for the president. I know how confining it is when the president only talks to people who happen to work for him.

For the president, of course, this law we're proposing eliminates a law that every president since 1973 has found to be unconstitutional and has largely ignored. The statue provides a mechanism for consultation with the Congress and it identifies a leadership group with whom the president should consult.

I know down in the White House and down the street a ways we've often had a question as to who the president should consult with. Sometimes I think a president has consulted with those who are most likely to agree with him, and we think that's probably not a healthy situation.

From the standpoint of the American people, the statute will really enhance the prospects of consultation between the Congress and the president on matters of war and make it a regular thing. This is something the public opinion polls have consistently indicated for more than 70 years the American people have wanted. We really believe the American people deserve something better than a law that's ineffective and has been largely ignored for 70 years.

Mr. Chairman, Mr. Ranking Member and Senators, thank you very much for hearing us and we look forward to trying to respond to any questions that you may have.

SEN. KERRY: Thank you very much, Mr. Secretary.

Mr. Chairman, I understand you're not going to make a statement -- is that correct? -- okay, but submit the questions.

Let me thank each of you for this. Let me emphasize, if I can, how important this is. I think my colleagues here understand that while the nation's attention is not focused on this issue today and while the klieg lights and the sort of hot breath of the media is not intense here at this moment, everybody in this room, particularly those at this table, understand the implications and how important it is to be here now trying to figure out the best path through this rather than in the middle of the crisis when all the attention is focused on it, but when you have the least ability to be able to do something about it.

So this is the moment, and I want to thank each of the participants, also want to thank Governor Baliles and the Miller Center for their support of this project. It's a very important contribution to our nation's discourse. And without objection, I intend to put the entire War Powers Commission report into the record, because I think this is a record that's going to be studied and analyzed as we go forward and we want to lay the predicate for our thinking and for whatever legal proceeding might one day occur as a consequence of this. So we are laying a record with respect to all of that at this time.

In your proposal, you set out types of operations that are specifically excluded. There are three in particular: actions taken to repel attacks or prevent imminent attacks on the United States; two, limited acts of reprisal against terrorists or states that sponsor terrorism; and three, missions to protect or rescue American citizens and military or diplomatic personnel.

Now, many of our operations today, military operations, are focused on our counterterrorism efforts. And I'd just like to try to clarify, if we can a little bit, what your thinking is here. Under what circumstance do you envision these exceptions allowing a president to order military strikes against state sponsors of terrorism without any consultation with Congress? Do you envision that? For instance, there are certain states engaged in proliferation activities today; one might envision some sort of counterterrorism preemptive effort with respect to them, and I wonder if you'd comment on that.

MR. BAKER: Thank you, Mr. Chairman. The exclusions or exceptions that are listed -- and you noted three of them; there are some others -- operate -- the president would be free to undertake those types of actions without prior consultation, without satisfying the requirements of our proposed statute. But once those actions ripened into a significant armed conflict, that is once those actions extended for more than seven days, the statute would be triggered, there would have to be consultations and then continuing consultations as the statute requires.

SEN. KERRY: So is significant armed conflict defined by the amount of time or by the size and scope of the operation?

MR. BAKER: It's defined by the -- it requires combat operations and it requires the expiration of seven days, so I think I would say the amount of time, but it is not just seven days during which combat operations have taken place; if the president knows or has reason to believe that a particular operation will last more than seven days, the statute is triggered. Now, that's difficult, of course, because you can't always get inside a president's head. But it's more the -- it's more, really, the time, but there is a requirement that the operations be combat operations, as opposed to just preparations therefore.

MR. HAMILTON: Mr. Chairman, you want to contrast that with the War Powers Resolution which uses the term "hostilities" and is very inadequately defined. Definitions, of course, are extremely difficult in this area, and we didn't want to over- define terms. We think we've struck the right balance here, but obviously that's our judgment.

SEN. KERRY: Can you -- and you are correct, Mr. Secretary; those are several -- those are three of a number of exclusions and I don't want to make it sound like those are exclusive. But the president has to consult with the joint committee prior to the conflict, unless there's a need for secrecy or other emergent circumstances precluding that. Can you give us a sense of what would qualify as "emergent circumstances" that would relieve the president of the duty for pre- deployment consultation?

MR. BAKER: Well, I think the ranking member gave us a good example of one, the air strike on Libya, where secrecy was critical. There would be others -- that's a separate provision, Mr. Chairman, of course, from the exclusion provision and exemption provision. There's one separate provision -- I think it's 4C -- that says if there is a need for secrecy to protect the lives, for instance, of American servicemen, then the president can begin his consultation three days after ordering or beginning the operation. That's a separate provision, of course. Under the ones that you initially read off, the general exclusions and exemptions, those are -- there would be no requirement to consult before those actions were undertaken, but once they had gone on for seven days, then there would be an obligation to consult.

A good example might be, from your experience, training operations, perhaps, in Vietnam, that ripened into something a heck of a lot more than training operations. If those training operations ripened into combat operations that extended more than seven days, the statute would be triggered.

SEN. KERRY: So does the consultation component of this depend on the good faith of the president or is there any kind of guillotine? Is there any sort of --

MR. BAKER: To some extent, when you're talking about requiring more meaningful consultation, there has to be good faith. And it depends upon good faith, I think, on the part of the president but also on the part of the Congress, the people being consulted.

I would make the point, Senator Kerry, that many people would argue that the president could do anyway -- (laughs) -- some of the things that are listed in here as exemptions -- that is, take actions to protect American possessions or embassies or citizens abroad. I think a lot of people would argue whether the president has that right anyway. Under our statute, he would have that right, but it wouldn't extend ad infinitum. If he took action to protect an embassy or American citizens abroad and it ripened into a combat event that lasted more than seven days, then the statute's triggered and there would have to be ongoing consultations.

MR. HAMILTON: And the important thing there is that the president must consult in that situation. He doesn't have an option. If he's going to commit troops for a significant armed conflict, he shall consult.

MR. BAKER: But not obtain approval -- no requirement in here for approval, but there's a mandatory requirement of consultation.

SEN. KERRY: Right, but there is, then, a mandatory requirement for a vote within 30 days --

MR. HAMILTON: That's correct.

MR. BAKER: Correct.

SEN. KERRY: So you are triggering a requirement for Congress to engage, which has been significantly absent with respect to the War Powers.

I mean, you know, it seems to me that the congressional -- the constitutional mandate "Congress shall declare war" does not require Congress to declare war.


SEN. KERRY: It simply gives them the power to declare war if they chose to do so. Correct?

MR. BAKER: That's correct.

SEN. KERRY: And, in effect, Congress has complicated this significantly, not the least of which, for instance, in the longest war in our history, Vietnam, where they've refused to ever step up and either do the purse or make the declaration.

MR. BAKER: That's correct, sir. And we think in something as important and serious as this, and particularly given the fact that the polls over the last 50-plus years have shown that the American people want both the Congress and the president involved when the nation sends its young men and women into battle, we don't think it's unreasonable to say Congress, after 30 days, should take a position on the issue.

Now, if a resolution of approval does not pass, our statute provides that any member of the House or Senate could introduce a resolution of disapproval. If that resolution of disapproval passes, it would not have the force of law unless the constitutional requirement of the presentment clause was met and it was presented to the president for his signature or veto. If he vetoed it and Congress overrode the veto, then, of course, you would have an actionable event of disapproval.

SEN. KERRY: All of which, in total, I believe, actually -- and this is what I think is very significant about your proposal and one of the reasons why, I think, it threads a needle very skillfully -- is that you actually wind up simultaneously affording the president the discretion as commander in chief and the ability to be able to make an emergency decision to protect the country, but you also wind up empowering Congress -- and, in fact, subtly, or perhaps not so subtly, asking Congress to do its duty. I think that's not insignificant at all and I think you've found a very skillful way of balancing those without even resolving the other issues that have previously been so critical in terms of the larger constitutional authority one way or the other.

MR. BAKER: Thank you, sir.

May I just make one final -- one other statement?

SEN. KERRY: Absolutely.

MR. BAKER: I don't mean to be doing all the talking here. We think, as Chairman Hamilton said, I think over on the House side, this proposal presents an outstanding opportunity for bipartisanship. We talk a lot about bipartisanship these days. Here's a really good example of an opportunity to achieve that.

The disagreements in this area have been disagreements between the branches, not so much disagreements between the parties. And this is something that is practical, it preserves the ability of each branch to continue to make their constitutional arguments but gives us a pragmatic and practical way of going forward, and it should not be a matter of partisan political difference.

SEN. KERRY: I couldn't agree more.

Senator Lugar.

SEN. LUGAR: Thank you, Mr. Chairman.

In my opening comments, I mentioned this date of April 14, 1986, because it framed several of the issues that we're discussing today. It was a pragmatic judgment by President Reagan to call this group together, which looks very much like the sort of group that you're suggesting. I think it encompassed the chairman and ranking members of Foreign Relations and Intelligence and Armed Services and that was true of House members. They may not all have been there, but I put the thing into my statement because I have a picture of us sitting around a table. This is not anecdotal. There is sort of documentary evidence of who was at the meeting.

And it was a rather awesome experience to hear the president, and then he turns to his secretary of Defense, describing the fact that there are aircraft in the air and they're taking action because some European countries at the time were making it difficult to fly over on a mission (of this variety ?), so it was taking them a while to get there. And that's why the three-hour lapse. And, also, it was interesting that there was enough anxiety or difference of opinion that the conversation went on for two and a half hours, during which you have the sense that these planes are approaching.

I remember coming back to my office and hearing, sort of breaking into the 7:00 newscast, the thought that aircraft were bombing Libya. And I said, well, that's right. That's what's happened.

Now, in this particular instance, however, there was this degree of consultation and responsibility. None of us knew what Libya would do, what kind of retaliation and what the aftereffects might be. As it turned out, there were not immediate ones so the seven-day rule or the 30-day rule probably would not have kicked in. This was sort of a mission accomplished at that point.

But the thing I want to raise is Libya was a nation state. The attack, really, was on areas very close to the president, or the great leader of the country, and, in fact, some of his relatives were killed, as I recall, in the process.

The problems that we have talked about in this committee recently revolve around such thoughts as al Qaeda might not only be in the mountains of Pakistan but in Somalia or in Yemen or, as we have found out, in attacks on our embassies before. Now, one of the values of this, as I've thought through this, is that this joint committee possibly might meet with some regularity as opposed to just simply on the occasion of a Libya situation, in which the president or those responsible could say, now, this is very confidential but, in fact, the war on terror is being fought in several fronts. There's a conspicuous one out in Afghanistan and Pakistan and we talk about that every day, because it's very important.

But what all of you folks in Congress need to understand is that our intelligence services are very good. They've ferreted out where al Qaeda may be. These people are fully as capable of launching or planning an attack on the United States as people were in camps in Afghanistan earlier and, therefore, they might say we're going to take action, or they might describe continuous action they are taking in which various members of al Qaeda may be losing their lives or losing something in the process and the ramifications of that are not really clear in the host country. It may have a failed state or something that is not -- in other words, it doesn't negate the fact we may deal with nation state war in the future but many would describe the more probable course in the war on terror as dealing with, if not al Qaeda, other cells that are threats to ourselves, our lives, to world stability -- a much more difficult thing perhaps to define. And this is why I find attractive the idea of this committee.

The dilemma, I think, for Chairman Kerry, as chairman of this committee, for example, would be, well, this new committee has staff and it has some jurisdiction on some of the most difficult issues. How does that work out with the staff of our committee, the bipartisan staff that works all the time on these issues, or of Armed Services or Intelligence? You know, you may say, well, that's for you folks to work out. You're going to be serving as chairman or ranking member on both of these committees and you already have certain staff members on your own staff quite apart from the committee and so forth.

I'm just curious. Did you have any discussion in your group about, as a practical matter, how this works out with regard to a committee staff, who has jurisdiction? In which committee do we really discuss this? Do we take it up in the joint meetings, regularly with the president or so forth, or is our responsibility really to our entire committee to a certain degree of public hearing so that we're all up to date on this? Do you have any feeling about these internal workings of how this might work?

MR. CHRISTOPHER: Senator Lugar, our commission talked quite a lot about the new forms of war and non-state actors. We had a number of witnesses, I think almost 50 witnesses, among them Dean Harold Koh, who I understand you'll be hearing this afternoon, in his nomination.

And we understood that, and one of the reasons we put in Section 4(a) of the statute was to meet that exact problem. We say the president is encouraged to consult regularly with the joint congressional consultation committee regarding significant matters of foreign policy and national security.

So we certainly don't mean to preempt the jurisdiction of this committee or other committees, but I think this would become the major forum for consultation on issues of war and peace and that's why we've given this committee a separate professional staff -- an ongoing professional staff that can be very useful in the future -- as well as access to all relevant intelligence.

Sometimes it seemed to me that Congress did not have as fully adequate access as sometimes they have down in the White House, so I think we understood that very well and we understood that these committees would continue to have their jurisdiction, but a major, major jurisdiction would be in this new joint committee which had a staff that would be working on a rather continuous basis.

SEN. LUGAR: I appreciate that answer. These are my own personal reflections, but as our nation approached the current war with Iraq in which we're involved, I think the feeling that I had during the summer vacation as I heard statements by Vice President Cheney or others was that we might be going to war before we got back in the fall.

I was reassured when we had a meeting with President Bush around the table with many of the people who'll be on this committee you suggested, and he said we're going to the United Nations; Secretary Powell is going to testify.

And so that was somewhat reassuring -- we were not going to war, and saying we were going to the United Nations. But then things deteriorated, and before long there were these thoughts that we were going to war sooner than later because the weather in Iraq gets warmer, and therefore if you were going to do something, it'd be better to do it in the spring than in the summer if you were to be effective with a strike of that sort.

This sort of came through the rumor mill. There was no committee in which some of us might have asked, you know, the president, is that true? Is the fact, in a military situation, that this is going to have to work out at this particular point?

I just reflect on this anecdotally because these are very large decisions that finally involve us for a long time, and the need to have this consultation and some access to the president and the secretaries and what have you, for many of us, we feel is very important in our responsibilities.

But I ask the question just on behalf of our committees as they are constituted while this committee of leaders is meeting that -- and after all, we're also trying to draw together, ultimately, if we're going to have votes on this subject, votes in the committee, votes in the Congress, relevant debates of all of us as well as those sitting around the table and in my own mind's eye trying to think how all of this progresses.

MR. BAKER: Well, Senator, if I might chime in here, Section 5(b), if you'll take a look at 5(b) of our proposed statute, says that it is our view that the committees of jurisdiction for the resolution of approval or disapproval should be the Senate Foreign Relations Committee in the Senate and the House Foreign Affairs Committee in the House. So we suggest a lead role for these two committees.

SEN. LUGAR: And they're mentioned specifically in this section?

MR. BAKER: They are mentioned specifically in 5(b), and it is our recommendation that they have the lead role.

MR. HAMILTON: Senator Lugar --

MR. BAKER: That doesn't answer all of your questions, but how do you --

SEN. LUGAR: No, but explicitly you've tried to meet that.

MR. BAKER: Yes, sir. Yes, sir.

MR. HAMILTON: Senator Lugar, my impression is that the decision to go to war involves a lot more than foreign policy; it involves intelligence and it involves certainly the armed forces. And you have enormous responsibilities in this committee extending far beyond the questions of war and peace. Your committee, this committee, would not in any way be diminished by this proposal.

But what we tried to do is to put in the room with the president the key players in all of the areas that would be involved in making a decision to go to war -- Intelligence, Armed Services, Foreign Relations, Foreign Affairs in the House -- and of course the ranking member and the chairman of these key committees would serve on the consultative committee so there would be good coordination.

This is, as I think you said in your statement, the most important decision government makes -- whether or not you go to war -- and you want to get it right as best you can. And I think you have a better chance of getting it right if you have all perspectives brought to bear and available to the president for consultation.

SEN. LUGAR: Thank you very much.

SEN. KERRY: If I could just follow up on that quickly, and I apologize, Senator Kaufman.

But 3(c) says the joint congressional consultation committee consists of -- you've referred to it prior to that but this is where you create it, so to speak, and it simply says who it will be made up of and then the chairmanship and the vice chairmanship will rotate.

My question is would it be -- I interpret it as a purely consultative committee for the sole purpose of -- and not with an ongoing, standing obligation under the rules of the Senate, in other words requiring staff and an enormous amount of work.

Now, maybe you interpret that differently, but would it be better to clarify that in some way, that its purpose will be solely consultative with respect to the issue of armed conflict, without staff?

MR. BAKER: Well, the Congress, of course, could do that.

SEN. KERRY: I'm just wondering what your thought is on that. I mean, it strikes me that that may be a way of dealing with some of Senator Lugar's concerns, which I think are legitimate.

MR. BAKER: That would be, I would think, Mr. Chairman, subject to the rules of the House and of the Senate, and whatever the wishes of the two bodies were would be, of course, I'm sure embodied in the final legislation. It was not our intent to sit up here and write the details of those rules.

But we did expressly think it was worthwhile recommending that the leadership in this area remain with House Foreign Affairs and Senate Foreign Relations.

MR. HAMILTON: I think the chairman -- Senator Kerry, you've got it exactly right. This is not a legislative committee. You're not authorizing money. You are consulting with the president -- that's your sole purpose -- on the question of going to war, and so it's a very limited purpose -- obviously hugely important but very limited.

SEN. KERRY: Well, we need to clarify that because Paragraph 4(h) actually gets specific about staff and what we might or might not do, so I think this is worthy -- this is exactly why we had the hearing and it's a good thing to explore.

Senator Kaufman.

SEN. EDWARD E. KAUFMAN (D-DE): Thank you, Mr. Chairman.

I think that there is -- as the panel said, there is no more important issue facing the Congress than how we deal with going to war, and I, having served this place for a long time, it's the single most difficult decision that a member of Congress makes and I'm sure it's the most difficult decision a president makes.

The War Powers Act -- I showed up in the Senate just about the same time as the War Powers Act and it's been like a rugby football that's been kicked around for 36 years, and I think that I can't think of better people to try to get at the heart of this than the people on this panel and we're very, very fortunate to have you here and working on this thing.

And I'm very much in sympathy with your proposal. I think consultative is a good idea. But if the War Powers Act is a 300-pound gorilla in the room, there's a 1,000-pound gorilla in the room and that is declaration of war beyond the war powers.

So we decided we have the War Powers Act, but at some point that Congress act. And clearly, we're not -- we've only declared war five times in our history and the last one was the Second World War.

Secretary Christopher, you said there were discussions about war and the declaration of war, and I just think I would be making a dereliction of duty if I didn't ask the three of you kind of your opinion on what we should do -- how we deal with this declaration of war problem, which is we just don't do it and we probably should, and I'd just like your thoughts.

MR. CHRISTOPHER: The Congress has decided, apparently, Senator, to go the route of authorization to conduct military operations and that's taken the place of a declaration of war. And it seemed to give the president all the authority he feels he needs to go ahead, so the declaration of war may well have fallen into disuse. Whether that's fortunate or unfortunate, I think that's the reality of where we are.

And so we're trying to provide a certainty here that there's consultation even if there is not an issue about the declaration of war. So we provide for this consultation whenever there are significant military actions contemplated, whenever there is combat action lasting longer than seven days, without regard to whether or not there has been a declaration of war or a motion for a declaration of war.

MR. BAKER: Congress has in one way or another authorized every action, I think, Senator Kaufman, in the last 50 years with the exception of Grenada, Panama and Kosovo, where there was not express authorization.

SEN. KAUFMAN: But are you comfortable with the idea that -- and I'm not saying we can do anything about it, we need a constitutional amendment to change it -- that essentially we have this perception that we've never been -- everybody knows we're at war but no one says we're at war. Does that bother you at all? You deal with international leaders -- is that a problem?

MR. BAKER: Well, I don't think there was -- it was not a problem in terms of the conflicts that I was involved in, certainly not the first Gulf War. Everybody knew that was a war and all the foreign leaders treated as such when we talked to them about it.

So I'm not sure -- I would imagine that there are a number of other arcane provisions in the Constitution that don't have ready application today. And so I don't know that a lot is lost. If the Congress authorizes the action in one way or another, is it really magic for them to do it by way of a declaration of war? I don't know.

SEN. KAUFMAN: Okay. And I would follow up on the chairman and ranking member's -- I think the staff question is an interesting question. When you have, you know, staff of the Foreign Relations Committee and Armed Services Committee that are studying this every day, they're up on what's going on, to have another staff group off to the side that then meets, what you're going to have is a consultative meeting.

The senators are going to bring their own staff from their own committees. That just kind of gets more people in the room and more people in the decision, which, as you have said, is the most important decision you make.

MR. BAKER: You know, following up on what Chairman Hamilton said, it may be preferable for the people on the joint consultative committee, the chairman and ranking members of the relevant committees and the leadership of the House and Senate, to bring their own personal staffs and use them, although what we were seeking to provide here is enough support so that the Congress would feel that it has a more equal place at the table. And I think, at least from my own view -- and maybe Secretary Christopher and Chairman Hamilton have a different view -- my thought there was that it was primarily oriented toward providing information to that joint consultative committee, intelligence information particularly.

MR. HAMILTON: Senator, to address your previous question, I think one of the advantages of the bill that we're proposing here is that it builds into the process broader support for the military action.

Everybody agrees that the country's better off, the president is better off, if he has broad support. Today a president can commit military forces really without congressional involvement, and usually, of course, the Congress comes along and supports the president, but that's not always going to be true. It may be true most of the time.

But what happens here is the president notifies the Congress the Congress must act. To be blunt about it, in almost every case I can imagine the Congress is going to support the president. It's possible that it would be otherwise but not likely, because presidents are able to carry the country on a national security issue because they're the only ones that have the voice to all the people. Therefore, one of the things you want to do is to build as broad support as you possibly can for that action and I think this provides a framework to do it.

I can well imagine some members of the House -- I'm sure no members of the Senate would not want to vote on it -- but it's important, we think, that they do vote on it and that the Congress get on record for the action or against the action, as they choose.

The result, I think, as a practical matter will be that a president will go into military action, lead the country into military action with much broader support than otherwise might be the case.

MR. CHRISTOPHER: Senator, let me follow up with just a thought or two on your very thoughtful question.

It seems to me that the joint committee that we propose is a way for the president to talk to all the members of Congress, not just one committee or another committee. It's a conduit for him to speak to all 535 members which he lacks right now, and that staff would enable this committee to really get to the bottom of the president's request and not have the information flow be dominated by what's known in the NSC down at the White House.

MR. HAMILTON: That's a very important point. Presidents today do not know with whom to consult -- 535 members, they know, of course, a few of them they need to consult with.

Here you provide a clear group of people with whom the president should support built into law, and a member of the House or the member of the Senate cannot complain, as they usually do, "I wasn't consulted." They have voted for a mechanism for the president to consult with the Congress and they can't complain then if the mechanism is followed.

I think it's very important for a president to be able to know with whom do I consult on this question and not just do it hit-or- miss, because Senator Kerry or Senator Lugar are key players -- there are a lot of key players in the Congress and this provides a president with a focal point for consultation.

SEN. KAUFMAN: I think it's an excellent proposal and I think that it's been interesting to sit here and watch in the absence of real affirmation of the War Powers Act or the declaration of war. There's a kind of kabuki theater goes on where the president, before they go to war or goes into an action, says, "I have the power, I can do this, I don't need you and the Congress to do it."

But in every single case, what have they done? They've come to the Congress because of the point that they need that broad support.

So the system works and I think it works well, but I couldn't agree with you more -- I think knowing who to consult with, people understanding what their responsibilities are, is always good no matter what kind of organization you have.

So I think this is especially good, and I think that what you've come up with -- I think the staff thing is something we should take a hard look at.

Thank you, Mr. Chairman.

SEN. KERRY: Thank you, Senator Kaufman.

Senator Corker.

SEN. BOB CORKER (R-TN): I want to thank all of you for your long years of public service and continuing to help us through these things and certainly for your help on this particular issue.

I have some specific questions. In the event of the "actional" event of disapproval where the Congress says we disapprove of war taking place and the president -- and even in the case, and I know this is very unlikely because Chairman Hamilton -- the fact is that Congress generally does support the president in matters of this type. Sometimes they go on longer and sometimes they lose that support.

But since we're not wrestling with the constitutional issue of who really has the authority, is there still a remainder conflict there if the president decides look, I've declared war and whether Congress overrides me with more than 67 percent or whatever we still have that conflict, constitutionally, do we not, with this solution?

MR. BAKER: You're always going to have that, Senator, unless you get a constitutional amendment or unless you get the Supreme Court to rule on the matter. There's no other way to resolve the constitutional problem.

But it would be very difficult for a president if the Congress voted a resolution of disapproval, he vetoed it and they passed it over his veto, it would be extraordinarily difficult for him to continue to support the military action politically within the country.

And of course, the will of the American people is the final arbiter of our foreign policy in a democracy such as we enjoy. Once he loses that, he's going to be in trouble. So it's the political imperative that would then kick in, but you will not have a resolution, you're quite right, of the underlying constitutional problem.

SEN. CORKER: So what we're really creating here is sort of the code of conduct that will exist between Congress and the president. It really is not going to have the effect of law, is that correct?

MR. BAKER: Oh, it would have the effect of law, I think. That's what we have in mind. It would be a statute that would be on the books. It could be challenged, I suppose, constitutionally, ex post facto by either somebody in the Congress, but, you know, we've had many cases where members of Congress have filed suit against the president and the courts won't entertain the suit.

Or it could be challenged by the president, saying, "I don't care whether they overrode my veto with a resolution of disapproval, I'm going forward anyway." Very risky business for the president.

SEN. CORKER: So let's -- you want to say something?

MR. CHRISTOPHER: I just wanted to say that if there was a resolution of disapproval passed by both Houses, and even if the president was able to avoid a veto, not have it overridden, nevertheless the Congress could then, through its internal rules, have their will expressed.

For example, Congress, I suppose, could have a rule that if there was a resolution of disapproval, disapproved in both Houses, that thereafter there'd be a point of order if there was any military appropriation. Congress has a great deal of power, of course, in the fiscal sense, so they can express their will.

If there was a resolution of disapproval that either the president signed or was passed over his veto, that would be true even to a greater degree that Congress could express its will through the failure to make appropriations.

SEN. CORKER: So we're sitting here today and as we're sitting here there are drones flying over Pakistan. And when the intelligence is appropriate and we actually know a target is zeroed in on them, we're dropping Hellfire missiles on top of living rooms or whatever we might call where folks are occupied today, so that's happening as we're sitting here. That's in the public domain; everybody understands that.

So explain to me exactly, since we know that's ongoing and it's been ongoing for a long time, how does that fit into this particular scenario that's been laid out?

MR. BAKER: There are a number of exclusions and exemptions, Senator Corker. Some of those the chairman mentioned that might cover the situation you're talking about -- actions taken by a president to repel attacks or to prevent imminent attacks on the United States, its territorial possessions, its embassies, its consulates or its armed forces abroad.

Limited acts of reprisal against terrorists or states that sponsor terrorism; covert operations -- some of the stuff that's going on, perhaps, has been authorized as a covert operation -- those are not covered by the statute unless, as I said early on, they ripen into a significant armed conflict by virtue of having a continuing combat operation for more than seven days.

SEN. CORKER: So to get back to Senator Lugar's question about Somalia and Yemen and lots of places where, quote, "al Qaeda is and exists," actions like that that continue to be surgical in nature that don't necessarily involve lots of troops, if you will, those types of actions can continue ad infinitum without any types of action by Congress?

MR. BAKER: Well, the only thing that's required under this statute of a president to begin with is consultation, so no approval is necessary -- simply consultation. Those things could continue until they would ripen into a significant armed conflict by virtue of a, I think, continuing combat operation for more than seven days.

SEN. CORKER: So if we're moving down the spectrum to that, one of the exclusions also is the safety of our troops.

MR. BAKER: Right.

SEN. CORKER: So it's hard to imagine many armed conflicts taking place in areas like that, which appears to be our greatest threat today. I mean, it seems that the types of wars we've had in the past are changing somewhat. So it seems to me if we were going to go into Somalia or Yemen or Pakistan, which even is more immediate, if we were to go into that kind of conflict, the safety of our troops would always be an issue, it seems, and especially in the surgical types of operations that we've had.

So it seems like in many cases, per the way this is drafted, the president would actually consult three days after it took place, at which time we're semi-engaged and I think that's where Congress finds itself many times. It's hard to undo an engagement that already has men and women that we don't want to see harmed in harm's way. Is that correct?

MR. BAKER: That's correct. I think that's correct.

MR. CHRISTOPHER: Senator, it's difficult to get into this refined definitional issue in this kind of a hearing. I suppose it might be argued that some of the actions in Pakistan at the present time would be covered by the resolutions after 9/11 which authorized the president to take action against al Qaeda and other terrorist groups. I'd say that's a very difficult definitional issue. There will always be difficult definitional issues as to what involves combat operations lasting longer than seven days.

But after working on this issue for a long time, that was the best we could do to find some definition that had some meaning for the future.

SEN. CORKER: Well, I think the contributions that have been made are outstanding and I thank you for coming before our committee and doing this work. I think that what it also does is raises lots of issues for us to think through as we try to refine it.

I would just reiterate, just to be the third person to mention this, I think to the extent you establish staff with a consultative group, I think it does, in fact, give the president, on one hand, one place to go.

I think in the process of giving the president one place to go I think that the other committees of jurisdiction end up sort of becoming even more irrelevant, which we're already -- I mean, in fairness, this committee's pretty irrelevant as it relates to those kinds of actions anyway. That's just the way it is, I'm not complaining.

But it seems to me that this committee, with staff, could end up creating a situation where Armed Services, Intelligence, Foreign Relations even become less relevant in the process. That could be one of the byproducts.

I understand why, in fact, you did it -- to make the knowledge at that consultative time equal as much as possible. It's never going to be equal to the administrative branch because look, they have the tools and should have the tools, okay?

But I think there's a balance there that one ought to think about, and I wonder whether we'd be better off having specific individuals in each of these committees that are on the committee staff of Foreign Relations, of Armed Services, of Intelligence, that make up, that are specifically aligned or part of that consultative group. I think that's a much better way of doing it.

Otherwise, Chairman Kerry, I think in essence you and Senator Lugar become far less relevant in the process.

So anyway, thank you very much. I see that my time is up. It looks like somebody might want to say something.

MR. HAMILTON: Senator, may I say that I think these staff members really are an internal matter, that your judgment may be better than ours on the commission and we would recognize that.

With regard to the definitional problems, you cannot define precisely everything that might occur -- you just can't do it. We wrestled a lot with the definitions and we did the best we could, and we did not want to over-define anything.

But at the end it seems to me what is really important here is that we require meaningful consultation. That's what's really important. And I think you can, to be blunt about it, just get lost in the definitions. You're trying to define the indefinable, in effect, and so while attention has to be paid to those and I don't want to denigrate that effort, you have to understand that you cannot get precise definitions for all of these possible engagements across a wide spectrum.

At the end of the day, what you really have to focus on is you've got a situation today where there is no requirement for a president to consult with members of Congress on this issue, and we're saying Mr. President, you must consult. And that, to me, is the overwhelming point.

MR. CHRISTOPHER: Mr. Chairman, I wonder if I could use Senator Corker's question to make a broader comment.

SEN. KERRY: Absolutely.

MR. CHRISTOPHER: When we finished our discussions in the committee we had an important decision to make -- should we just make a recommendation, put out a report like this, or should we try to draft a statute?

And we felt that it was more likely to be practically useful to draft the statute. Having done the draft we don't have any great pride of authorship and we'd be glad to work with the senators or their staff to try to perfect it and find some better ways to deal with these issues.

I think we were right in trying to draft the statutes so you have something concrete before you, but as I say, this cannot be the final word and Congress will work its will and we'll work with you so you can work your will.

SEN. KERRY: Well, thank you, Mr. Secretary.

I don't think it's frankly as complicated as maybe some people think it sounds, but I'm -- I think the power of this is, number one, that you require the consultation, but it's also equally as powerful that you require Congress to step up after a period of time and take a position.

And frankly, both serve all of our interests. I mean, you know, the term "significant armed conflict," including any operation that either lasts seven days or that the president knows is going to last seven days so he comes to you and in the consultative process says, "Look, this is going to take a few weeks; it's tough, big operation," so you know that you're in that posture. But it also requires us to apply a certain amount of practical common sense and reasonableness standard here. I can easily see what's happening -- we're not at war with Pakistan. I don't think by anybody's definition we'd say we're at war with Pakistan.

We are at war in Afghanistan against al Qaeda and Taliban efforts, et cetera, that are supportive of al Qaeda, but the actions in Afghanistan and Pakistan are sort of cross-border. They clearly fit into either Paragraph 1 or Paragraph 2 of the limitations -- or not Paragraph 1 or 2 but those particular two limitations -- and I think a reasonable standard applied to that finds that pretty quickly.

What's important here is we resolve something we haven't been able to do, which is get Congress to act. I mean, that's pretty significant. And it's in the interests of any president to consult, because a president who doesn't consult and doesn't have the support of Congress isn't going to be able to sustain this for very long and then we're all weakened as a consequence of that.

So I think that again, you know, we can work out the details of it, but I think the consultative piece -- you know, if we're consulting as a group and it is specified who the president's going to consult with, we're going to bring our existing staff either from this committee -- Carl Levin, John McCain, et cetera, from Armed Services, Intelligence people -- we're all going to consult anyway because this is big stuff, it's important stuff that has lives at state and the interest of the country.

So I think the staff thing is the least of our issues. I think just keeping it clean and simple and setting it up so you require the consultation and then have this vote structure is a very significant step forward because we've been in absolute gridlock on this issue for 35, 40 years now -- 30 years.

SEN. CORKER: If I can respond to Secretary Hill (sic), I want to say that from my perspective -- and I appreciate what you're saying, no pride of ownership -- I think the offering of legislative language is a huge contribution. I think otherwise -- and I think the fact that you've done that actually allows us to think through some of these details that otherwise we wouldn't.

So I thank all three of you and I certainly appreciate you being here today.

SEN. KERRY: Gentlemen, I want to thank you for protecting our relevancy. We're particularly grateful.

SEN. CORKER: Well, I will say this, that I don't think the Foreign Relations staff, because of the way we deal with foreign aid and deal with other kinds of things just willy-nilly, passing out program after program and not really looking at eliminating the ones that we feel are less, I think we do, in fact, render ourselves very irrelevant on some of these things and I know that you want to change that and I appreciate it.

SEN. KERRY: Appreciate your --

SEN. KAUFMAN: Mr. Chairman, just one other comment, and that is, you know, like, for instance, a covert action has to be approved by the Intelligence Committee.

So I think one of the things we can do on this, and it's not as big a problem as I think you think it is because the Congress does have power in all these areas, and it's our job to go through and find out where different Congress committees have to approve different actions by the president. And we all know that one of the big things is the power of the purse strings.

I mean, eventually, they've got to get the appropriations approved. So I think this is an excellent, excellent proposal and I think when you look at it in the total of the Congress's responsibility and the Congress's powers in this wrestling with the president, I think this is going to turn out to be something that'll be -- the definitional problems are not as great as they may sound.

MR. BAKER: May I make one point, Mr. Chairman, on relevancy? I think this proposal of ours -- and of course, I'm biased -- but I think this offers an opportunity for this committee to take the lead on a matter that would enhance the relevancy, Senator Corker, of this committee.

You have a statute in this area which is a joke. It is observed more in the breach than in the observance, and at the very least that is not good in a nation of laws that our primary statute in this area is observed more in the breach than in the observance.

So if we can replace that with something that's workable and practical and pragmatic, that enhances consultation between the branches, that alone, I think, would help the relevancy of the committee if this were to move on to committee in doing that.

SEN. KERRY: Senator Feingold, thanks for your forbearance for this little dialogue, we appreciate it.

SEN. RUSSELL D. FEINGOLD (D-WI): Thank you, Mr. Chairman.

Obviously, we're so fortunate to have such an exceptionally distinguished panel, and thank you for all your work on this subject.

I'd like to use some of my time to just make a statement and then ask a couple of questions.

As we continue to grapple with the profound costs of rushing into a misguided war, it is essential that we review how Congress's war powers have been weakened over the last few decades and how they can be restored.

The war in Iraq has led to the deaths of thousands of Americans and the wounding of tens of thousands and will likely end up costing us $1 trillion. What if we had had more open and honest debate before going to war? What if all the questions about the administration's assertions had been fully and to the extent appropriate been publicly aired?

So clearly, any reforms of the War Powers Resolution must incorporate these lessons and foster more deliberation and more open and honest public dialogue before any decision to go to war.

I appreciate that attention is being drawn to this critically important issue, which of course goes to the core of our constitutional structure. It's a conversation that we need to continue to have. But I am concerned that the proposals made by the Baker-Christopher Commission cede too much authority to the executive branch in the decision to go to war.

Under the Constitution, Congress has the power, quote, "to declare war," unquote. It is not ambiguous in any way. The 1973 War Powers Resolution is an imperfect solution. However, it does retain Congress's critical role in this decision-making process.

The commission's proposal, on the other hand, would require Congress to pass a resolution of disapproval by a veto-proof margin if it were unhappy with the president's decision to send our troops into hostilities.

That means, in effect, that the president would need only one- third of the members plus one additional member of either House to continue a war that was started unilaterally by the president. Now, that cannot be what the framers intended when they gave the Congress the power to declare war.

Since the War Powers Resolution was enacted, several presidents have introduced troops into battle without obtaining the prior approval of the Congress. Campaigns in Grenada and Panama are a few examples.

None of these cases involved imminent threats to the United States that justified use of military force without the prior approval of Congress. The simple solution to this problem would be for the president to honor the Constitution and seek the prior approval of Congress in such scenarios in the future.

And while the consultation required by the War Powers Resolution is far from perfect, I think it is preferable to the commission's proposal to establish a consultation committee. If this bill had been in place before the war in Iraq, President Bush could have begun the war effort consulting with a gang of 12 members of Congress, thereby depriving most of the Senators in this room the ability to participate in those consultations as we did in the run-up to the Iraq war.

The decision to go to war is perhaps the most profound ever made by our government. Our constitutional system rightly places this decision in the branch of government that most closely reflects the will of the people. History teaches that we must have the support of the American people if we are to successfully prosecute our military operations. The requirement of prior congressional authorization helps to ensure that such public debate occurs and tempers the potential for rash judgment.

Congress failed to live up to its responsibility with respect to the decision to go to war in Iraq. We should be taking steps to ensure it does not make this mistake again. We should be restoring this constitutional system, not further undermining it.

Speaker, part of the premise of the commission's finding is that several presidents have refused to acknowledge the constitutionality of the War Powers Resolution. I note that of course in practice most do honor the resolution.

In your view, does the president's commander-in-chief authority give him the authority to ignore duly enacted statutes?

MR. BAKER: Duly enacted statutes? Not in my view. On the other hand, there has been -- you said most presidents, Senator Feingold; all presidents have refused to acknowledge the -- or all presidents have questioned the constitutionality of the War Powers Resolution, both Democrat and Republican.

SEN. FEINGOLD: Right. I simply said several presidents -- (inaudible) -- right, but most have honored the resolution in practice.

MR. BAKER: Well, that's not really quite accurate, sir. They send -- they file reports in keeping with -- the language is in keeping with -- but never has one president filed a report pursuant to the War Powers Resolution.

SEN. FEINGOLD: Okay. Nonetheless, I appreciate your answer to the basic question, and it seems to me that much of the ambiguity you attribute to the War Powers Resolution would be resolved if future presidents simply abided by the resolution, that would help solve the ambiguity.

Mr. Hamilton, before the Iraq war, every senator had the opportunity to at least review the intelligence assessments on Iraq, particularly the October 2002 NIE. I concluded that there was insufficient evidence to justify the decision to go to war. Under your bill, wouldn't the full Congress have even less access to the intelligence supporting the decision to go to war? Wouldn't that intelligence be limited to the gang of members on the consultation committee?

MR. HAMILTON: With the consultative committee, I think you expand the number of members that would be brought into the discussions involving the highest level of intelligence. In other words, you'd have more members involved under our proposal than you do now because you have a --

SEN. FEINGOLD: I was a relatively middle junior member of the Foreign Relations Committee. I was not at that time a member of the Intelligence Committee. At some point I was afforded the opportunity to go down to the secured room and to hear directly from the CIA people whether they felt the same thing that we were hearing publicly.

And I've got to tell you, their tone when they were trying to express these arguments that the president was making was rather tepid, and it gave me a feeling that something was wrong here.


SEN. FEINGOLD: And I would, apparently under this scenario, not had been a part of that process. Now I'm not saying my role was critical, but I did end up being one of the people who went to the floor immediately and said I'm not buying this al Qaeda connection; I'm not buying the notion that Saddam Hussein is likely or ready to attack the United States. It appears that somehow somebody in my situation would not necessarily be a part of that pre-, you know, military action process.

Mr. Hamilton?

MR. HAMILTON: Well, I think under the law today the president doesn't even have to consult with members of Congress before he takes you into war because the provisions in the War Powers Resolution are very vague with regard to consultation. We expand greatly the number of members who would be involved in that consultative process here.

SEN. FEINGOLD: It appeared, though, in this circumstance of Iraq that this was part of the consultative process, that our access to the people from the president's CIA was pursuant to a discussion that led to a vote of the full Senate.

MR. HAMILTON: Well, the other thing --

SEN. FEINGOLD: That this was a process where all members -- well, perhaps not at all but at least members of the Foreign Relations -- all members of the Foreign Relations Committee -- were given the opportunity to participate in that kind of a settlement and --

MR. HAMILTON: In the proposal that we're putting before you, not -- members of Congress are required to vote on it.

SEN. KERRY: Senator --

MR. HAMILTON: You don't have that requirement under present law.

SEN. KERRY: Yeah. There is no requirement under present law at all. What happened is we did it under the prerogatives of each of the committees because the committee chairs and ranking members understood that that was part of the responsibility.

Nothing in here -- and we've discussed this before you came here -- about this consultative component being strictly in fulfillment of the requirement that the president let us know what he's thinking of doing so that those other committees -- that's why each of them are part of it. The Intelligence Committee, the Armed Services Committee, the Foreign Relations Committee would then go about their normal business of involving all of their members. I mean, but there's no statute that required that for you either.

SEN. FEINGOLD: I'd like to believe that, Mr. Chairman, but it strikes me this provides an opportunity that the president doesn't currently have to say, look, I went through this consultative process that's provided by this new statute so I have even less a need to go through a formal vote, which, you know, as we just talked about, most presidents have decided -- President Bush on the first Gulf War -- even though he may not have taken the view that he had to do it, he went ahead and did it.

I think this creates a process that could end-run the feeling of the part of a president that he needs to go through a process that would actually involve this kind of participation, but I'm not saying this doesn't literally require it.

MR. BAKER: But Senator --

SEN. FEINGOLD: Yes, Mr. --

MR. BAKER: We require a vote within 30 days, so the president is going to be facing a vote of the Congress, and if the vote is a resolution disapproval, that's going to have very serious adverse impacts on the president's ability --

SEN. FEINGOLD: But in the case of Iraq, of course --

MR. BAKER: Well, that, of course -- I mean, you know --

SEN. FEINGOLD: Thirty days after it wouldn't have been -- not too helpful.

MR. BAKER: Well, that's true, but the president, both presidents went to the Congress to get approval and actually obtained approval.

Back to the point you made about the observance of a statute duly enacted and whether a president can question its constitutionality, there's always been an ability of presidents to question constitutionality, and in this area it has consistently been questioned by both Democratic and Republican presidents.

Presidents have sent troops abroad, Senator Feingold, 264 times, during which period the Congress has declared war five times. So we're faced with a situation we expressly -- I think before you arrived we had a dialogue here about the fact that we have expressly preserved the rights of Congress to make the argument that I think you are making and the right of the president to make the argument that all presidents have made since the War Powers Resolution was passed that the Constitution gives either, a, the Congress the authority or, b, the president the authority.

So we expressly reserve those constitutional arguments, put them to the side because they are not going to be solved in the absence of a Constitution amendment or a Supreme Court opinion. So we don't prejudice either branch; what we're trying to do is find a workable solution here that will improve the relationship and the consultation that takes place between the president and Congress when the nation's going to war.

SEN. FEINGOLD: I respect the effort and I respect the intent and it may well work that way. My concern -- and I know my time's up, Mr. Chairman --

SEN. KERRY: No, take -- no problem.

SEN. FEINGOLD: -- is that I witnessed as a non-senator the excellent debate that was held on the floor of the United States Senate prior to the first Gulf War. I also was involved in the truncated and unfortunately weak debate prior to the Iraq war, but any process that could somehow make a president feel that he did not need to go through that process prior to such a major action would trouble me. So that's how I need to review this. Could this lead to that practical effect as opposed to the literal effort you have made to avoid such a consequence?

MR. BAKER: Well, I don't think so --

SEN. FEINGOLD: That would be the nature of my concern.

MR. BAKER: Well, let me just quickly answer it. I don't believe so because the president has that power today, so we're not -- in this effort I don't see this as giving the president something he doesn't have today.

SEN. FEINGOLD: Thank you, Mr. Chairman.

SEN. KERRY: Thank you, Senator Feingold. Those are important inquiry and I think it's worth examining the sort of Iraq experience in terms of the vote up front versus late.

But there may be some way, Mr. Secretaries, Mr. Chairman, in terms of the definitions. I know you all struggled with this and maybe we can spend a minute sort of reviewing that as to whether you can, you know, cover those rare circumstances where you have such a level of deployment and such a level of confrontation, i.e., I mean, the invasion of a country is a pretty big deal and there ought to be some way -- I mean, that is certainly "separatable" from about 200 and some of those instances of use of force.

And so maybe there's a way to try to have a balance here and I think we ought to sort of examine that. At any rate, are there any further questions from any colleagues?

There will be some questions for the record, if you don't mind. I think we want to try to fill this out a little bit. And so I'm going to leave the record open for a week and if you -- I hope we don't overly impose on your good will here, but I think there will be a few questions for the record that might be helpful.

MR. CHRISTOPHER: Chairman, we'll be glad to respond to those questions.

SEN. KERRY: Again, we really thank you. This is just a huge and complicated topic, as we can see, but I think you've made a major, major contribution to our thinking about how to proceed forward and we want to work with you very closely to see how we can take this further. So we thank you for coming today.

MR. BAKER: Thank you, sir.

SEN. KERRY: We stand adjourned. (Sounds gavel.)


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