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War Powers for the 21St Century: the Constitutional Perspective

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War Powers for the 21St Century: the Constitutional Perspective WAR POWERS FOR THE 21ST CENTURY: THE CONSTITUTIONAL PERSPECTIVE HEARING BEFORE THE SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT OF THE COMMITTEE ON FOREIGN AFFAIRS HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION APRIL 10, 2008 Serial No. 110–164 Printed for the use of the Committee on Foreign Affairs ( Available via the World Wide Web: http://www.foreignaffairs.house.gov/ U.S. GOVERNMENT PRINTING OFFICE 41–756PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate 0ct 09 2002 09:32 May 14, 2008 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 F:\WORK\IOHRO\041008\41756.000 Hintrel1 PsN: SHIRL COMMITTEE ON FOREIGN AFFAIRS HOWARD L. BERMAN, California, Chairman GARY L. ACKERMAN, New York ILEANA ROS-LEHTINEN, Florida ENI F.H. FALEOMAVAEGA, American CHRISTOPHER H. SMITH, New Jersey Samoa DAN BURTON, Indiana DONALD M. PAYNE, New Jersey ELTON GALLEGLY, California BRAD SHERMAN, California DANA ROHRABACHER, California ROBERT WEXLER, Florida DONALD A. MANZULLO, Illinois ELIOT L. ENGEL, New York EDWARD R. ROYCE, California BILL DELAHUNT, Massachusetts STEVE CHABOT, Ohio GREGORY W. MEEKS, New York THOMAS G. TANCREDO, Colorado DIANE E. WATSON, California RON PAUL, Texas ADAM SMITH, Washington JEFF FLAKE, Arizona RUSS CARNAHAN, Missouri MIKE PENCE, Indiana JOHN S. TANNER, Tennessee JOE WILSON, South Carolina GENE GREEN, Texas JOHN BOOZMAN, Arkansas LYNN C. WOOLSEY, California J. GRESHAM BARRETT, South Carolina SHEILA JACKSON LEE, Texas CONNIE MACK, Florida RUBE´ N HINOJOSA, Texas JEFF FORTENBERRY, Nebraska JOSEPH CROWLEY, New York MICHAEL T. MCCAUL, Texas DAVID WU, Oregon TED POE, Texas BRAD MILLER, North Carolina BOB INGLIS, South Carolina LINDA T. SA´ NCHEZ, California LUIS G. FORTUN˜ O, Puerto Rico DAVID SCOTT, Georgia GUS BILIRAKIS, Florida JIM COSTA, California VACANT ALBIO SIRES, New Jersey GABRIELLE GIFFORDS, Arizona RON KLEIN, Florida BARBARA LEE, California ROBERT R. KING, Staff Director YLEEM POBLETE, Republican Staff Director SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT BILL DELAHUNT, Massachusetts, Chairman RUSS CARNAHAN, Missouri, DANA ROHRABACHER, California Vice Chair RON PAUL, Texas DONALD M. PAYNE, New Jersey JEFF FLAKE, Arizona GREGORY W. MEEKS, New York JOSEPH CROWLEY, New York CLIFF STAMMERMAN, Subcommittee Staff Director NATALIE COBURN, Subcommittee Professional Staff Member PAUL BERKOWITZ, Republican Professional Staff Member ELISA PERRY, Staff Associate (II) VerDate 0ct 09 2002 09:32 May 14, 2008 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 F:\WORK\IOHRO\041008\41756.000 Hintrel1 PsN: SHIRL C O N T E N T S Page WITNESSES Edwin D. Williamson, Esq., Senior Counsel, Sullivan and Cromwell, LLP ....... 8 Jules Lobel, Esq., Professor of Law, University of Pittsburgh School of Law .... 13 Michael J. Glennon, Esq., Professor of International Law, The Fletcher School, Tufts University ...................................................................................... 22 Louis Fisher, Ph.D., Special Assistant to the Law Librarian, Law Library of Congress ........................................................................................................... 41 Bruce Fein, Esq., The Lichfield Group ................................................................... 47 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING The Honorable Bill Delahunt, a Representative in Congress from the Com- monwealth of Massachusetts, and Chairman, Subcommittee on Inter- national Organizations, Human Rights, and Oversight: Prepared statement 3 Edwin D. Williamson, Esq.: Prepared statement .................................................. 10 Jules Lobel, Esq.: Prepared statement .................................................................. 16 Michael J. Glennon, Esq.: Prepared statement ..................................................... 25 Louis Fisher, Ph.D.: Prepared statement .............................................................. 42 Bruce Fein, Esq.: Prepared statement ................................................................... 50 (III) VerDate 0ct 09 2002 09:32 May 14, 2008 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 F:\WORK\IOHRO\041008\41756.000 Hintrel1 PsN: SHIRL VerDate 0ct 09 2002 09:32 May 14, 2008 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 F:\WORK\IOHRO\041008\41756.000 Hintrel1 PsN: SHIRL WAR POWERS FOR THE 21ST CENTURY: THE CONSTITUTIONAL PERSPECTIVE THURSDAY, APRIL 10, 2008 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT, COMMITTEE ON FOREIGN AFFAIRS, Washington, DC. The subcommittee met, pursuant to notice, at 3:01 p.m., in room 2172, Rayburn House Office Building, Hon. William D. Delahunt (chairman of the subcommittee) presiding. Mr. DELAHUNT. The subcommittee will come to order. I feel like I am 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 am sure, going to be in- formative. In 1990, one of America’s leading constitutional scholars had this to say about the War Powers Resolution. These are his words; I will 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 art- fully drawn, is to facilitate the efforts of individual Members of Congress to carry out their responsibilities under the Con- stitution. To do that requires understanding, and it also re- quires courage and the fortitude to stand up to those who equate criticism with lack of patriotism. For a Congress com- posed of such Members, no War Powers Resolution would be necessary. For a Congress without them, no War Powers Reso- lution 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 ques- tion 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 pro- posed by our colleague, Walter Jones, in House Joint Resolution 53. The question is, Do we need a change in the congressional cul- ture so that more Members become convinced of their obligation to be partners with the President in the most crucial of all national (1) VerDate 0ct 09 2002 09:32 May 14, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 F:\WORK\IOHRO\041008\41756.000 Hintrel1 PsN: SHIRL 2 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? Well, as most things in life, I am 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. Unfortunately, I am not going to be able to—I am going to be able to find out, because it is 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 un- paralleled claims to Executive power provoked a response by Con- gress that led to the enactment, over his veto, of the War Powers Act. However, Congress since then has not only abdicated its con- stitutional responsibility, but also failed to insist on compliance with the war powers legislation that it had enacted by an over- whelming 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 Resolu- tion, but only one that started the 60-day clock for congressional approval pursuant to it. And in at least a dozen other cases, com- bat took place with no notification whatsoever. Now we find ourselves at a different moment in time, with an- other war, another President, and another effort to usurp congres- sional 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 re- turning to Congress to secure new authority. In large measure, the administration bases this position on the 2002 congressional reso- lution that authorized the use of force to remove the threat posed by the government of Saddam Hussein. My comment at that time, and I will repeat it now, is that this is just patently absurd on its face. It is 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
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