Wonderful Committee hearing today in SFRC

[TayTay]

It was about updating the War Powers Act and clarifyiing the role of the Congress and the role of the President in declaring War.

Wonderful, thoughtful hearing that is an initial act in getting Congress to consider statues that clarify what each branch of the government does.

Like with Sen. Webb's announcement of legislation about sentencing and prison reform, this is something that has been in the works for a very long time and reflects the work of many, many devoted people. (Sen. Webb's bill reflects concerns about sentencing and prison reform that go back two decades.) This War Powers Act has been a subject of heated debate since it was enacted in 1973. Some people found it unconstitutional because it infringed on the power of the President or the obligation of Congress to vote on going to war.

This is a huge breaking news day. This discussion is a think piece that requires the application of time, thought, true inter-party thinking and anything but immediate action. So, we have theluxury of working this out of a period of time.

But I commend the hearing to you. It's about 90 minutes in length and can be accessed at the SFRC web site. It's worth some pondering.

[beachmom]

1. Thanks for the heads up, Tay. I'll have to check it out. Here is a BG post on it:

http://www.boston.com/news/politics/politicalintelligence/2009/04/kerry_committee.html

It includes Kerry's opening statement. Warren Christopher and James Baker plus Lee Hamilton were there. Sounds interesting.

[TayTay]

2. IT is a long term thing

and exactly what should be done as part of the mandate of SFRC. However, it is not going to be flashy stuff. However, a determination of how, when, where, and under what authority this nation goes to war is a critical question. As everyone who ever had to face a vote on this in the Congress says, there is no single vote more important than the one that sends our troops to war.

I think this is a very, very busy week. We can return to this topic later. But it is a great use of Sen. Kerry's SFRC hearing time. And the report that this hearing was based on was released in July of 2008 and left languishing. Sen. Kerry revived it for SFRC.

[beachmom]

3. I watched the hearing which was very interesting. First a who's who

of Senators on the committee: It seems that the real players on the committee who actually show up (like for the Afghan veterans hearing which was sparsely attended by Senators) are Kerry, Lugar, Corker, and Feingold. There are others who showed up here and there, but those are the four to watch, who actually care deeply about these issues.

Kerry and Lugar clearly supported the Baker/Christopher/Hamilton solution which would require the President to consult with a special committee (made up of the chairmen and ranking members of the Foreign Relations, Intelligence, and Armed Services committees) before going to war (defined as combat operations that last more than 7 days). Then the Congress would be required to register approval or disapproval of that war within 30 days. At this time, none of this is required, even if the President tends to seek authority from Congress before a large war. Corker was skeptical and Feingold was DEAD SET against it. He feared a Gang of 12 that received information while all other members of Congress would be left out (that makes one think about the gang who were told about the waterboarding, although they were deprived of staff to understand everything involved.).

Re: the Iraq War we had two views. Lugar talked about how all he knew that was going on in terms of whether there would be war in Iraq was what he saw on TV and via rumors. In short, he was not consulted in the run up to the Iraq War. He felt this statute would be helpful to remedy that. Feingold, OTOH, who basically launched into a left wing diatribe that would win praise in the progressive blogosphere, talked about how he looked at the NIE, concluding there was no reason to go to war, and that IF there was a Gang of 12 system, he wouldn't have even had that. Baker responded that at this time, the NIE or even the President seeking authority for war are not required by statute. Feingold remained skeptical and felt that regardless of intention, in practical terms, this law would weaken Congress's already weak powers. Corker was worried that this new special consulting committee would deem irrelevant the Senate Foreign Relations Committee.

My take is that the idea of a consulting committee that would meet with the President is a good thing. They will not be TOLD about what the President was going to do but be CONSULTED. What makes that more compelling is that these members of Congress do not work for the President, so will be more likely to display independent voices. I do think, however, that Feingold's worries are warranted. As bad as the system is now, I do think invasions should be approved of by Congress ahead of time, and that information should be provided to all members of Congress. However, I actually am unsure if it was less the structure and more the political mood in October 2002 which led to Congress overwhelmingly supporting this war. Feingold seems to get a lot of enjoyment out of being "RIGHT" on the vote. But he is missing the point that Congress did vote for that war. And it wasn't a 51 - 49 vote. And, although I agree with Feingold that Congress should declare war, I have to say that Baker is right that in practicality that simply is no longer done.

This was an interesting hearing, but because Kerry voted yes to the IWR, it would not be a discussion I could have with liberals on Kos or in GDP. They would just side with Feingold and all say they hate the idea. The deeper questions discussed would suffer and be ignored, while a re-hash of the 2004 presidential primary fights would take over.

The hearing can be found here:

http://foreign.senate.gov/hearings/2009/hrg090428a.html

[TayTay]

4. Excellent recap of the hearing.

I would add that one of the problems is the contrast between what happens in theory and what happens in actuality. In theory, the proposed change would give the Congress a right to formally "disapprove" of an action of the President. This would be subject to a veto by the President and subsequent override by the Congress. As Sen. Feingold pointed out, this means that we could fail to disengage from a Presidential act of war by vote of 1/3rd of the Congress while 2/3rds would disapprove. (Not very democratic.) Plus, as Congress has repeatedly shown by it's unwillingness to debate military and supplemental budgets on war funding, disapproval would be nearly impossible to achieve, politically.

However, this is a great beginning to a discussion on clarifying the powers of the President and the Congress. There were some very good ideas here and some excellent discussion. There was no 100% agreement, which to be expected at this early stage in the process.

Excellent write-up.

[karynnj]

5. I just finished watching it and your recap is awesome

This really was a grown up hearing.

I agree with you both on where the members were and where you are. I do think though that it would be wise if they take Feingold's comments seriously. If for no other reason than because these are the attacks that the angry left will have. Those objections can be anticipated and pre-empted by including something speaking in a general way of the types of information and briefings that will be provided to the entire Senate before the now required vote. Baker's point that this adds to what is required now is true, but both Corker and Feingold sound like they fear they are losing some oversight responsibility and the Congressional leaders are gaining some. (Speaking of this, they need to reverse the Bush decision that only the gang of 8 get the details in the intelligence committee.) To me, it is clear the leaders are gaining some oversight, but it is not clear that junior Senators are losing any.

With Iraq, there was a problem to some degree that the War Powers Act had no credibility and Presidents on both sides of the aisle had ignored it. This is why some argued that Bush already had the power to take us to war and that they were trying to legislate a process that could avoid it - but ended up making themselves complicit. I wish that Feingold would have offered concrete suggestions for additions or changes to the plan that would eliminate his concern with giving the power to another leadership "gang". It would be good to have something explicitly there.

In addition, just as Kerry repeatedly says he has to tell himself not to always think of any war as Vietnam, while still applying the lessons of Vietnam, I think Senators can't see every war as Iraq. There were circumstances that made it unusual. What I would take from Iraq, is that Congress should never again vote to shift their approval to the President in advance of the situation warranting action and worse, to do that without any real conditions. Had the IWR required coming back to Congress after a period of time if the inspectors were let in, it would have been better. It is interesting to think what a vote in January would have looked like after the inspectors had been in Iraq for months. It would have put all of those who claimed they weren't voting for war to a test, though I fear some Democrats would have failed.

[beachmom]

6. Thanks, Karynnj. I just found this Defense News article that adds

more of what happened at the hearing:

http://www.defensenews.com/story.php?i=4062598&c=AME&s=TOP

The key requirement in the War Powers Consultation Act is for meaningful consultation between the president and Congress over decisions to go to war, Baker said.

The consultation requirement gives Congress more influence in the decision to commit troops and it gives the president "the benefit of Congress's counsel," the commission wrote in a summary of the legislation.

The commission calls for creating a Joint Congressional Consultation Committee that would be made up of the majority and minority leaders of both houses and the chairmen and ranking minority members of the Armed Services, Foreign Affairs and Intelligence committees.

"We believe that if the president and committee meet regularly, the distrust and tension" between the White House and Congress can be reduced, the summary says.

But Sen. Russ Feingold, D-Wis., warned that creating a special committee to consult with the president could dramatically reduce the number of lawmakers the president must consult to a "gang of 12." As a result, many others might be excluded from participation in consultations.

Feingold also warned that the legislation also requires Congress to pass a resolution of disapproval by a veto-proof margin in order to pull U.S. troops out of hostilities.

"That means, in effect, that the president would need only one-third of members plus one additional member of either house of Congress to continue a war started unilaterally by the president," he said.

[karynnj]

7. If correct, I think this is too biased towards the President

This article says:

"The law then gives Congress 30 days to vote on a resolution to approve the president's action. If the resolution fails in either house, any member of Congress may propose a resolution of disapproval.

If that passes and the president signs it, or if Congress overrides a veto, the resolution of disapproval becomes law. Presumably, the resolution of disapproval would include provisions to end combat operations, although the War Powers Consultation Act does not say so."

So it looks like the possibilities are:
1) The President wants to commit troops, Congress easily passes the resolution (like Afghanistan or unfortunately, Iraq) - no problem
2) The President wants to commit troops, Congress votes against it and passes the disapproval resolution, the President stunned that more than half the Congress disapproves rethinks things and ends the war. (Because President's don't have big egos :) )
3) The President wants to commit troops, Congress votes against it and passes the disapproval resolution with 50 to 66 votes, the President vetoes it, Congress fails to override, and the war is on- this is the example Feingold has problems with.
4) The President wants to commit troops, Congress votes against it and overrides the President's veto - ending the war

This has the virtue of always requiring a vote. BUT, look at the way the approval resolution is handled. If it passes, the President has authorization. If it fails, apparently the President doesn't need Congress' authorization. Defeating that resolution is not sufficient here to deny support. Both congress and the President have some Congressional role here. This resolves the situation where the President and the Congress are at odds in the President's favor. There is something wrong with the idea that 66 Senators and more than 2/3 of the House could be against a war - and this allows it to continue because the veto would not be overridden.

I agree with Feingold here. The President already has the advantage of the bigger megaphone and being the titular head of one of the parties, able to win support from them because they might want his/her support. The President has the better connection to the people. If there ever were a war where 51 Senators said No or the majority in the House said no, that would be a very rare event and would signal that it was likely not a good idea.

Simply saying the President needs the resolution to commit passed would likely be more equitable. (Saying it simply needs 50 to pass the Senate would being giving the President something.)

As to the consultation, it seemed like an additional group the President had to discuss it with, but which couldn't overrule the President - though I assume that a sane President would pause if that entire group was against it. It is stunning that Dick Lugar, who was the Republican foreign policy expert since at least the 1980s wasn't consulted on Iraq. Lugar's not being consulted makes Feingold's comment on others being excluded weird - as this adds people who need to be included, not excludes them.

Hamilton saying that there will usually be agreement - is a better argument for designing something that weighs more heavily the rare case where they are willing to stand up and disagree.

[TayTay]

8. Good discussion

I think the War Powers Act probably is unconstitutional and does need to be either abandoned in theory as well as practice or reformed. I view this hearing, and all the discussion on it over the years as a sort of prelude to what might happen. (This is because it is one thing to talk about something in a think tank, it's another thing when a Committee chair with the power to introduce legislation pushed something.)

The Constitution gives the President the power to act as Commander in Chief in any given instance of "imminent threat." The Congress has the power to declare war, upon request of the President. This is really the crux of the problem and the source of the Constitutional conflict. The President can act swiftly and he/she should be the one who has a "first response" to any imminent threat to the US. However, any conflict that goes on should have the blessing of the legislative branch of government in order to be considered sanctioned.

The Presidents, Obama included, have contended that the inherent powers of the Presidency include the power to engage any enemy. This means the power to engage in war in all but name and the President does not have to get Congressional approval for any hostile action it explicitly names as something other than war. (This is the all important distinction. If we don't call hostile actions in which people are in harm's way a war, then it does not have to go to the Congress for approval.) That is obviously a problem as the President can send troops to 15 year "hostile actions" in Vietnam or endless conflict in Iraq, etc without the explicit declaration of war that the Constitution calls for in Article I.

Interestingly, Sen. Kerry cited "imminent threat" in his 2002 speech about the IWR. He believed, and I think with cause, that the conditions laid out by the President warranted the use of those special Commander in Chief powers. (This is not a question of the lies that informed that choice, it was a discussion about the powers of the President under the Constitution.) The Bush presentation basically boiled down to a warning about "imminent threat" to the Republic. (This is what the "warning in the form of a mushroom cloud" was all about.) Sen. Kerry believed that the President has not only the right but the duty to defend the nation in a time of threat in which he/she is the only "actor" with the flexibility to act. This is a potent argument.

That argument, sadly, can not be divorced from the desire of people to overstate a threat and thus impel everything into "imminent threat." We know from Vietnam and Iraq that some threats were hyped so that they appeared more than what they were. The President went to war not because American interests were in grave danger but because the President used war as a weapon of common foreign policy. The sensible buffer against endless wars that are not sanctioned by all of the government is for the Congress to step forward and reclaim it's power to declare war. But, that is precisely what Congress has not wanted to do. They should be forced into it.

BTW, this argument, as it pertains to the new SFRC and it's Chair is fascinating. Sen. Kerry has made the "strong executive" argument. He is also the same person who suffered through a war that was based on lies. I am genuinely interested to hear him speak on this, given that he sees both sides.

[beachmom]

9. Here is an op-ed about torture and the gang of 4 but is relevant to the war powers act:

http://www.nytimes.com/2009/05/13/opinion/13divoll.html?_r=2&pagewanted=1&emc=eta1

The framers of the Constitution gave aggregate, not individual, powers to the legislative branch. For the Gang of Four to have waved their arms and yelled at mid-level C.I.A. briefers, or written harsh letters to the president and vice president, would have been useless. Four members do not have the ability, on their own, to bring the great weight of the constitutional authority of Congress to bear.

...

One might ask whether it was just too risky to share information about the interrogation program with so many members of Congress. Isn’t four better than 40, if we must keep this secret? It is true that the Gang of Eight exception was included in the law to give some flexibility, in a subset of cases, to the executive branch to limit the number of legislators who receive a notification, at least initially. Sometimes, for example, if an operation is imminent — like the capture of an al Qaeda leader — short-term security may require it to be held very closely.

But there is nothing in the legislative history of the Gang of Eight exception that supports the use made of it by the Bush administration — to shield, indefinitely, a politically controversial program from Congressional scrutiny. The exception has been abused to the point where it no longer has meaning, and Congress should examine whether it should be clarified or even eliminated.

If we do keep it, Congress should spell out in detail the very limited circumstances in which a Gang of Eight briefing may be given, and permit such secrecy for only a limited time. Only short-term operational security — not a controversial policy choice — should justify a temporary close hold.

Of course, the real reason that notifying four members of Congress was better than 40 to the Bush White House is crystal-clear — to eliminate political pushback. Check the box that Congress was informed just in case, someday, the program becomes public and things get rough. But do so in a way that the legislative branch is not in a position to cause any trouble.