President Bush made clear that he would consult closely with Congress as the United States responds to terrorism. Congress' post-September 11th resolution was an unambiguous decision to authorize force. Like the Gulf War authorization in 1991, the authorization explicitly affirms that it "is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." This removes any actions that fall within the scope of the authorization from the War Powers Resolution's 60day time-clock provision. At the same time, Congress made clear that the requirements of the War Powers Resolution otherwise remain applicable. THE WAR POWERS RESOLUTION AND THE WAR AGAINST TERRORISM For all the controversy it has spurred, key elements of the War Powers Resolution are constitutionally compelling and warrant broad support. First, its overriding purpose is to "insure that the collective judgment of both the Congress and the President" applies to the introduction of U.S. forces into hostilities and to the continued use of those forces. Second, it seeks to enable Congress to better fulfill its constitutional responsibilities by requiring the President "in every possible instance" to "consult with Congress before introducing" U.S. armed forces into hostilities or imminent hostilities and to continue to "consult regularly" with the Congress while U.S. forces are in those situations. Moreover, the legislative history of the War Powers Resolution makes clear that Congress expected consultations to be meaningful: "Rejected was the notion that consultation should be synonymous with merely being informed. Rather, consultation in this provision means that a decision is pending on a problem and that Members of Congress are being asked by the President for their advice and opinions, and in appropriate circumstances, their approval of action contemplated. Furthermore, for consultation to be meaningful, the President himself must participate and all information relevant to the situation must be made available." (H.Rep. 93–287 (1993), p. 2351). 6 Third, under the War Powers Resolution, the President is required to report to Congress within 48 hours in designated situations, and to make periodic reports to Congress at least once every 6 months if U.S. forces remain in hostilities or imminent hostilities. Whatever conclusions one reaches about the more controversial provisions of the War Powers Resolution, such as the 60-day time clock, the consultation provisions are sound and reasonable efforts to ensure that both the President and the Congress fulfill their constitutional responsibilities concerning the commitment of U.S. forces abroad. Moreover, even when Congress has authorized the use of force, as it did after September 11, regular, meaningful consultations between Congress and the President remain vital in the ongoing war on terrorism. Such consultations are imperative to ensure that there is a frank exchange of views and a shared understanding between Congress and the President on future directions in the war on terrorism and broad support for the steps ahead. To give a counter-example: The experience in Somalia is a cautionary reminder that congressional authorization and support in the early phases of an operation does not replace the need for continued dialog about the goals and risks of a changing mission. We cannot afford to make the same mistakes in the current context. CONSULTATIONS How should a system of regular, meaningful consultations between Congress and the Administration be structured as the country faces up to what will likely be a long, complex campaign against terrorism? Clearly, a commitment by the President to hold regular consultations with the bipartisan congressional leadership would be invaluable. Second, as the War Powers Resolution expressly provides in section 4(b), Congress should request that a broader range of information be included in the periodic war powers reports provided by the Administration. Those reports, which have 6 These include when U.S. forces are introduced into hostilities or imminent hostilities, "into the territory, airspace or waters of a foreign nation, while equipped for combat," or "in numbers which substantially enlarge" existing deployments of combat-equipped forces in foreign nations. 7 The controversial portions of the War Powers Resolution include section 2c, which I think does too narrowly state the President's constitutional war powers, but does not affect the operation of the rest of the resolution, and the 60-day time clock provisions, including the concurrent resolution provision (section 5(b)). At the same time, however, the War Powers Resolution explicitly states that it is not intended "to alter the constitutional authority of the Congress or of the President," 8(d)(1), and it also contains a severability clause, which provides that if any provision or application of the resolution is held invalid, the remainder of the resolution shall not be affected. (Section 9). generally been perfunctory since the War Powers Resolution was first enacted, should, in the context of the war on terrorism, include a fuller discussion of the objectives and effectiveness of U.S. action, including our efforts to work closely with allies on multiple fronts. Congress may also wish to request that the reports be made more frequently, say every 3 months, and, in any event, invite Cabinet officials to testify on the State of the war on terrorism when those reports are submitted. The combination of fuller reports and high-level testimony could, in conjunction with meaningful consultations, make for a more significant and effective dialog between Congress and the Administration regarding future goals and strategies in the war on terrorism. FUTURE AUTHORIZATION As important as consultations are, however, they are not a substitute for congressional authorization if military action is contemplated that clearly implicates Congress's war powers. While the post-September 11 authorization is broad, it does contain limits, most notably the requirement of a clear link to the attacks of September 11. Other threats to U.S. security unrelated to those attacks may exist or arise in the future, and various military options may be considered, including options that go beyond measures to prevent future acts of terrorism by those responsible for the September 11th attacks. Whether and when additional congressional authorization is constitutionally required will depend on the facts of the situation and on the nature and objectives of the military action contemplated. Constitutionally, the President clearly possesses the power to repel attacks and to forestall imminent attacks against the United States and its armed forces, and to protect Americans in imminent danger abroad. But the decision to go beyond this and commence a war belongs to Congress. Major military action with far-reaching objectives such as regime change is precisely the kind of action that constitutionally should be debated and authorized by Congress in advance. The Constitution's "wisdom" on this point is compelling: Authorization, if provided by Congress, ensures that the risks and implications of any such action have been fully considered and that a national consensus to proceed exists. Congressional authorization also ensures American combat forces that the country is behind them, and conveys America's resolve and unity to allies as well as adversaries. The war against terrorism will, unfortunately, be with us for a long time. However, as our Nation moves ahead on various fronts, using a variety of tools and means, our response will be more effective and more sustainable if the Congress and the President continue to work together in the best tradition of our great Constitution. Chairman FEINGOLD. Thank you very much, Professor. I just want to mention two items here, in light of your testimony. One is, I was pleased to have you sort of join the point that Dean Kmiec had raised, which I had not heard before, the idea that declaring war is merely to in effect have Congress ratify something that is already happened. I would submit-and I certainly know that he has a dean of law, so I am careful to do this-but that if the Framers had intended that to be the case, they could have used words like "ratify" or "endorse" or "acknowledge." To me, "declare" has always been a strong word suggesting a proactive role for Congress. But that is an interesting point that I had not thought about before. And as we get into the questions, you can respond to that. Secondly, some of the testimony seems to merge or maybe even confuse consultations over broad scope of policy directions versus consultation over tactical decisions, which is a dangerous thing. Because none of us, at least nobody that I work with here in the Senate, really believes that we should be consulted about every tactical decision. That is a scary thought, in terms of our armed forces. And the trouble is, though, as the discussion proceeds, if the goal for consultation is portrayed as trying to get into all that, it makes people turn off on the whole idea of legitimate consultation. And that is something we have to avoid. The War Powers Resolution talks about scope of operations and not about delving into the President's tactical decision-making. And I want it very clear on the record that that is, at least from my interest in this, what we are talking about here, not an attempt to undercut the very difficult responsibilities that our Executive has in conducting this war and this battle. Thank you, Professor. The final witness is Professor Michael Glennon, who is currently scholar in residence at the Woodrow Wilson Center. He is also a professor of law at the University of California-Davis Law School. He is an expert in international constitutional law. He has held staff positions with the Senate Legislative Council's office and with the Senate Foreign Relations Committee. And he has also written very widely on these war power issues. Thank you for joining us. STATEMENT OF MICHAEL GLENNON, PROFESSOR OF LAW AND SCHOLAR IN RESIDENCE, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS, WASHINGTON, D.C. Mr. GLENNON. Thank you, Mr. Chairman. Let me begin by congratulating you on putting this hearing together on this critically important subject. You have asked us to address two questions: First, when will additional authorization be necessary in prosecuting the war against terrorism? Second, how can consultation and reporting practices be made more meaningful? As I outlined in my prepared statement, the starting point in answering your first question is to determine what authorization is already in place. In principle, authorization of use of force could come from any one of three possible sources: a treaty, a statute, or the Constitution. There is no treaty that is currently in effect that confers authority on the President to use force. Indeed, the United States has never been a party to such a treaty. And any treat that purported to do that probably would be unconstitutional. As to statutes, the War Powers Resolution requires that any authorization to use force be explicit. There are only two statutes currently in force that meet the War Powers Resolution's explicitness requirements. One of those statutes is the Gulf War Resolution of 1991. In theory, this could confer authority on the President to attack Iraq. I understand that the subcommittee does not wish to explore that complicated question today, so I will not get into that. The second statute that meets the War Powers Resolution's explicitness requirement is of course S.J. Res. 23. That is the statute passed by Congress, again, on September 14. S.J. Res. 23 would provide continuing authority to use force against entities that were involved in the September 11th attacks on the Pentagon and the World Trade Center. But S.J. Res. 23 would provide no authority for use of force against an entity not involved in the September 11th attacks. And I would refer the subcommittee in this connection to the straightforward and clear statement of my friend John Yoo, which appears, Mr. Chairman, on page 516 of the article that you entered in the record at the outset of this hearing from the Harvard Journal of International Law and Policy, in which John says the following, "The joint resolution's authorization to use force is limited only to those individuals, groups or states that planned, authorized, committed or aided the attacks and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups or states that cannot be determined to have links to the September 11th attacks." Now, I must say I am somewhat perplexed at my friend Ruth Wedgwood's suggestion that either would suffice, either of these two resolutions would suffice, to provide authority for attacking Iraq. S.J. Res. 23 would not provide authority for attacking Iraq unless it were established that Iraq was involved in the September 11th attacks. Let me turn, Mr. Chairman, to the Constitution. When the Constitution permits the President to use force without congressional approval is one of the most contentious and vexing issues in American constitutional jurisprudence. In my view, the best short answer to that question was given in the Senate version of the War Powers Resolution, language that was dropped in conference. It said that the President may act alone in using armed force in the following circumstances: "to repel an armed attack upon the United States, its territories or possessions; to take necessary and appropriate retaliatory actions in the event of such an attack; and to forestall the direct and imminent threat of such an attack." The Senate version of the War Powers Resolution also recognized the President's power to act alone in repelling attacks on the United States armed forces and in protecting threatened U.S. nationals who are located abroad. In all other situations, the Senate believed in 1973 that prior congressional approval is constitutionally required. Now, contrast the Senate's 1973 formula with the formula set out in the hastily drafted whereas clause, the fifth whereas clause, of S.J. Res. 23. And I want to underscore something. A whereas clause is not part of the legally operative language of the statute. It can have no binding effect. It is import is purely prefatory. The 1973 formula that the Senate adopted flows directly from the sources of constitutional power that Jane Stromseth just identified, the Constitution's text, the Framers' intent, the case law, subsequent custom and practice, and functional and structural considerations. Those sources suggest the rejection of the British model in which war-making power resided exclusively in the king. They explain the adoption of a new American model in which the war power was shared between the executive and legislative branches. Now, how could consultation and reporting be made more meaningful? Let me begin, Mr. Chairman, by suggesting how I think Congress should not attempt to make consultation and reporting more meaningful. Congress needs to resist the urge to substitute consultation for authorization. Authorization and consultation are not interchangeable. Consultation can entail only listening. When constitutional lines are crossed, more than listening is required. The Constitution requires compliance. And compliance requires authorization. Second, I know that many in Congress believe that the information provided by the executive in the war against terrorism has been inadequate. But I hope that Congress will also resist the recurring temptation to set up some superconsultative committee to try to remedy these deficiencies. The risk is too great that such a committee would be co-opted by the executive branch. The truth is, when the Congress really needs certain information, it can almost always get it. One of the most important documents to get are those describing the legal justification for given actions, "What is the specific legal rationale?" which Congress in many cases does not even request. Finally, in the next stage of the war on terrorism, I hope that the President will sidestep this tired debate about constitutional theology and ask for congressional approval simply as a matter of sound public policy. No one can be certain, Mr. Chairman, what is next in this war. But the last thing this Nation needs is a heated constitutional debate on the eve of an international conflict. Weak Presidents need incessantly to underscore their constitutional prerogatives; strong Presidents do not. If the President acts pragmatically, as Alton Frye has suggested, I hope that Congress will meet him halfway. This means resisting the effort to establish a precedent that its approval was constitutionally required. The words of President Kennedy carry as much wisdom for interbranch relations as they do for international harmony. "Civility," he said, "is not a sign of weakness. And sincerity is always subject to proof." Thank you. [The prepared statement of Mr. Glennon follows:] STATEMENT OF MICHAEL GLENNON, PROFESSOR OF LAW AND SCHOLAR IN RESIDENCE, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS, WASHINGTON, D.C. Thank you for inviting me to testify today. You have asked us to address two questions that may arise in connection with use of force in the ongoing war against terrorism. First, at what point will further authorization or consultation be required? Second, how can consultation and reporting be made more meaningful? Contrary to what seems to be growing sentiment in Congress, authorization and consultation are not interchangeable. Where authorization is required, consultation cannot substitute for it. And even when authorization is in effect, consultation may nonetheless be lawfully required. Let me turn first, therefore, to the question of authorization. At what point, as the war on terrorism proceeds, will the President require additional authorization from Congress? A. SOURCES OF AUTHORIZATION To identify the point at which further authorization to use force will be needed, it is first necessary to determine what authorization exists and how far it extends. Authorization to use force in prosecuting the war could derive, in principle, from three possible sources: a treaty, a statute, or the Constitution. 1. AUTHORIZATION BY TREATY The first possible source, a treaty, is most easily dismissed. No treaty currently in force gives the President authority to use force. Indeed, the United States has never been a party to any treaty that purported to give the President authority to use force. The constitutionality of any such treaty would be doubtful in that it would necessarily divest the House of Representatives of its share of the congressional war-declaring power. (For this reason, all of the United States' mutual security treaties have made clear that they do not affect the domestic allocation of power.) Moreover, war-making authority conferred by any such treaty would be cutoff unless it |