S. HRG. 107–892 APPLYING THE WAR POWERS RESOLUTION TO THE WAR ON TERRORISM HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SEVENTH CONGRESS SECOND SESSION APRIL 17, 2002 Serial No. J–107–74 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 85–888 PDF WASHINGTON : 2003 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) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate Mar 21 2002 12:14 Apr 07, 2003 Jkt 085888 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 C:\HEARINGS\85888.TXT SJUD4 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah, JOSEPH R. BIDEN, JR., Delaware STROM THURMOND, South Carolina HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona CHARLES E. SCHUMER, New York MIKE DEWINE, Ohio RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama MARIA CANTWELL, Washington SAM BROWNBACK, Kansas JOHN EDWARDS, North Carolina MITCH MCCONNELL, Kentucky BRUCE A. COHEN, Majority Chief Counsel and Staff Director SHARON PROST, Minority Chief Counsel MAKAN DELRAHIM, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS RUSSELL D. FEINGOLD, Wisconsin, Chairman PATRICK J. LEAHY, Vermont STROM THURMOND, South Carolina EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois MITCH MCCONNELL, Kentucky ROBERT SCHIFF, Majority Chief Counsel GARRY MALPHRUS, Minority Chief Counsel (II) VerDate Mar 21 2002 12:14 Apr 07, 2003 Jkt 085888 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 C:\HEARINGS\85888.TXT SJUD4 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 Hatch, Hon. Orrin, a U.S. Senator from the State of Utah ................................. 80 Thurmond, Strom, a U.S. Senator from the State of South Carolina ................. 96 WITNESSES Fisher, Louis, Senior Specialist in Separation of Powers, Congressional Re- search Service, Library of Congress, Washington, D.C. ................................... 13 Frye, Alton, Presidential Senior Fellow and Director, Program on Congress on Foreign Policy, Council on Foreign Relations, Washington, D.C. ............... 31 Glennon, Michael, Professor of Law and Scholar in Residence, Woodrow Wil- son International Center for Scholars, Washington, D.C. ................................ 54 Kmiec, Douglas, Dean of the Columbus School of Law, Catholic University of America, Washington, D.C. ............................................................................. 23 Stromseth, Jane, Professor of Law, Georgetown University Law Center, Washington, D.C. ................................................................................................. 46 Wedgwood, Ruth, Edward B. Burling Professor of International Law and Diplomacy, Yale Law School and Paul H. Nitze School of Advanced Inter- national Studies, Baltimore, MD ........................................................................ 38 Yoo, John, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C. .......................................................... 7 QUESTIONS AND ANSWERS Responses to Questions from Senator Thurmond by: Fisher, Louis ..................................................................................................... 85 Frye, Alton ........................................................................................................ 82 Glennon, Michael J. .......................................................................................... 88 Stromseth, Jane ................................................................................................ 90 SUBMISSION FOR THE RECORD American Civil Liberties Union, submitted by Timothy H. Edgar, Legislative Counsel, Washington, D.C. .................................................................................. 5 (III) VerDate Mar 21 2002 12:14 Apr 07, 2003 Jkt 085888 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 C:\HEARINGS\85888.TXT SJUD4 PsN: CMORC VerDate Mar 21 2002 12:14 Apr 07, 2003 Jkt 085888 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 C:\HEARINGS\85888.TXT SJUD4 PsN: CMORC APPLYING THE WAR POWERS RESOLUTION TO THE WAR ON TERRORISM WEDNESDAY, APRIL 17, 2002 UNITED STATES SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 2:00 p.m., in Room SD–216, Dirksen Senate Office Building, Hon. Russ Feingold, chairman of the subcommittee, presiding. Present: Senator Feingold. STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Chairman FEINGOLD. The subcommittee will come to order. And I would like to start by thanking all the witnesses here for joining us. I will introduce each witness in just a few minutes. But in general, I must say that I am very pleased to have this opportunity to discuss constitutional war powers with such a very distinguished group of legal commentators. Today the Constitution Subcommittee will focus on one of the most complicated but ultimately one of the most important con- stitutional questions confronting the country as we respond to the atrocities of September 11th. We will consider the balance of war powers authority under the Constitution as it relates to our fight against terrorism. We will consider, in short, who decides under our Constitution when the United States will go to war. This is no easy issue, but it is one that I think Congress is duty- bound to address. This discussion begins with a remarkable example of cooperation and respect between the two branches of government in exercising shared war powers authority. Before President Bush ordered U.S. military troops into armed conflict to respond to the attacks of Sep- tember 11th, he took an important and constitutionally mandated step: He asked for and received the consent of Congress. And I sup- ported that resolution. Senate Joint Resolution 23, which was passed by both houses of Congress and signed into law by the President, provides the Presi- dent with statutory authorization to prevent future acts of ter- rorism by responding with all necessary and appropriate force against those responsible for the September 11th attacks on the United States. (1) VerDate Mar 21 2002 12:14 Apr 07, 2003 Jkt 085888 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\HEARINGS\85888.TXT SJUD4 PsN: CMORC 2 In signing the Use of Force Resolution, the President stated that Congress ‘‘acted wisely, decisively, and in the finest traditions of our country.’’ And I could not agree more. The resolution demonstrated that Congress still has the capacity and the dedication to fulfill its constitutionally mandated responsi- bility and in so doing to unify the Nation in a time of national cri- sis. In fact, I was very proud to have had the opportunity to support that resolution. And on September 14th, I commended the Presi- dent on the floor of the Senate for recognizing the constitutional role of Congress in authorizing a military response to September 11th. I also noted that it was particularly important that the resolu- tion explicitly abided by and invoked the 1973 War Powers Resolu- tion. Through this hearing now we will have an opportunity to explore in more concrete legal terms how the War Powers Resolution ap- plies to the use of force authorization. Specifically, we will consider how the War Powers Resolution must shape our national decision- making process as Congress and the President make tough choices about our future military priorities in responding to terrorist threats. The War Powers Resolution recognizes the shared constitutional responsibilities of both President and the Congress to make critical decisions concerning the introduction of U.S. armed forces into hos- tilities. The War Powers Resolution calls for more than just a one- time authorization from Congress to send our forces into battle. By recognizing Congress as custodian of the authority to declare war or otherwise to provide statutory authority to send our troops into harm’s way, the War Powers Resolution also demands regular and meaningful consultations between the two branches of government, both to begin and to sustain our military engagements. As our founders and many subsequent commentators have recog- nized, the separation of powers in this area wisely forces us to de- velop a broad national consensus before placing our fellow citizens in harm’s way. And as we have seen time and again, the United States is indeed the most formidable military force on this planet, provided our forces and soldiers are entrusted with a clear military goal and through required congressional authorization with a popular man- date to back them up. The effectiveness to date of our military campaign to respond to the attacks of September 11th demonstrates that our Nation and our military operate at the zenith of moral, political, and military might, when acting under constitutional authority and with a de- fined, democratic mandate. Now the President has suggested that the military campaign may one day expand to other theaters of operation. Indeed the news is rife with speculation