OPENING STATEMENT OF CHAIRMAN BILL DELAHUNT
At a hearing of the Subcommittee on International
Organizations, Human Rights, and Oversight titled:
WAR POWERS FOR THE 21ST CENTURY: THE
CONSTITUTIONAL PERSPECTIVE
April 10, 2008
The Subcommittee will come to
order. In 1990, in his authoritative
book Constitutional Diplomacy, one of
No
modification of the Resolution will in itself “insure that the collective
judgment of both the Congress and the President will apply to the introduction
of United States Armed Forces into hostilities…”…The most that a statute can
do, no matter how artfully drawn, is to facilitate the efforts of
individual members of Congress to carry out their responsibilities under the
Constitution. To do that requires
understanding, and it also requires courage…and the fortitude to stand up to
those who equate criticism with lack of patriotism. For a Congress composed of such members, no
War Powers Resolution would be necessary; for a Congress without them, no War
Powers Resolution will be sufficient.
This scholarly exposition
mirrors the analysis presented by my friend and distinguished Ranking Member,
Mr. Rohrabacher, in our first hearing on this topic. I believe that it poses the essential
question for us as we continue our 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 have been proposed by our colleague Walter Jones in House Joint
Resolution 53.
That question is:
Do
we need a change in the congressional culture, so that more Members
become convinced of their obligation, to be partners with the President in the
most crucial of all national decisions -- the decision to go to war?
Or
do we need a change in the process by which we ensure that Congress meets its
Constitutional responsibilities?
Well, as with 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 book would say to my conclusion…and
fortunately, I am going to be able to find out, because Michael Glennon, a
professor at the
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But first, a little bit of
history is in order.
The confluence of the war in
However, Congress since then
has not only abdicated its constitutional responsibility, but also failed to
insist on compliance with the War Powers legislation that it had enacted by an
overwhelming majority.
The truth is that the War
Powers Resolution has never really worked.
In fact, according to the Congressional Research Service, there have
been over 120 presidential filings “consistent with” the War Powers Resolution,
but only one that started the 60-day clock for congressional approval “pursuant
to” it – and in at least a dozen other cases, combat took place with no
notification whatsoever.
Now we find ourselves at
another moment in time – with another war, and another president – and another
effort to usurp congressional constitutional authority.
The administration has
claimed that upon the expiration of the United Nations mandate that lapses on
December 31, 2008 – the only plausible legal basis for our presence there –
American military forces can continue to engage in combat without the President
returning to Congress to secure new authority. In large measure, the administration bases
this position on the 2002 Congressional resolution that authorized the use of
force to remove the threat posed by the government of Saddam Hussein.
My comment then – which I
will repeat now – is that this patently absurd interpretation of the 2002
authorization has no basis in fact, and is an affront to the constitutional role
of Congress. I recently introduced
legislation with Congresswoman Rosa DeLauro that calls for the extension of the
U.N. mandate – and requires that any agreement authorizing
Therefore, this argument
about congressional and executive war powers is not academic, but very real.
And I would submit that now, more than ever, is the moment in our nation’s history
to engage on this issue.
Let me now turn to my friend
from
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Thank you Mr. Rohrabacher.
At this point I ask unanimous
consent that the Honorable Walter Jones Jr. be permitted to participate as a
member of the Subcommittee today for the purposes of receiving testimony and
asking questions. Hearing no objection,
it is so ordered.
Mr. Jones, it is only by your
efforts that Congress is addressing the issue of the War Powers this year. You are the engine on this train, and I
applaud you for investing the time and effort to prepare the resolution that we
are discussing today. Would you like to
make an opening statement?
Thank you, Mr. Jones. Let me now introduce our witnesses.
Professor Michael Glennon
has written not just that authoritative book I mentioned previously, Constitutional
Diplomacy, but also four other significant texts in this field, including Limits
of Law, Prerogative of Power: Interventionism after Kosovo and the
definitive United States Foreign Relations and National Security Law,
which was just republished in a new edition this year.
Mike is joined at the witness
table, I am pleased to say, by one of the most remarkable collections of
scholarly expertise on the constitutional issues surrounding the War Powers
that our country has to offer.
Bruce Fein is widely recognized as a leading conservative authority
on the Constitution. He has written on
many of the fundamental questions of our time, authoring books on the Supreme
Court, the Constitution, and international law. He has also advised numerous countries on constitutional
questions, including
Like the rest of our panel,
Professor Jules Lobel, of the University of Pittsburgh Law School, is a
leading legal scholar and author, including a handbook for lawyers on civil
rights litigation, a collection of essays on the Constitution, A Less than
Perfect Union, and the recently-published Less Safe, Less Free: Why
America is Losing the War on Terror.
But Professor Lobel is, in
addition, perhaps the leading American litigator on the war powers, serving as the
attorney in such key court challenges as Congressman Tom Campbell’s suit against
President Clinton’s decision to wage an air war against Yugoslavia over its
actions in Kosovo, and Congressman Ron Dellums’ suit to force President H. W.
Bush to come to Congress for approval to drive Iraq out of Kuwait.
Edwin Williamson, who is currently the senior counsel at Sullivan and
Cromwell, served on the distinguished panel on the War Powers put together by
the Constitution Project, whose co-chairs we heard from in the previous hearing. Mr. Williamson wrote the dissenting opinion
to the majority report, which, I remind the Subcommittee, served as the basis
for Mr. Jones’ bill, H. J. Res. 53. He
has also been the legal adviser of the Department of State.
And it would be almost
irresponsible to hold a review of constitutional thought on the War Powers
without the one person whom everybody the staff interviewed while seeking
witnesses for this hearing said simply had to be here, Louis Fisher, of
the Library of Congress. Over the past
36 years, Lou has written 18 books in the general field of the separation of
power under the Constitution, including the classic text for law schools, American
Constitutional Law. Six of his books
directly relate to the foreign policy and war powers, including The
Constitution and 9/11 and In the Name of National Security. He recently won the Neustadt Book Award for
his 2005 book, Military Tribunals and Presidential Power.
Welcome, gentlemen, and
please proceed.
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