Verbatim, as delivered

March 5, 2009

Opening Statement by Chairman Berman at hearing, “The Role for Congress and the President in War: The Recommendations of the National War Powers Commission”

Today we turn our attention to one of the most sacred trusts of any government – the decision to send its sons and daughters into harm’s way.

For decades, constitutional experts and policy analysts have struggled to delineate the responsibilities of Congress and the President in authorizing the use of U.S. armed forces.

The “war powers” question is far from academic. American men and women in uniform are engaged in hostilities on the other side of the world. As eloquently stated by our two esteemed witnesses, whether or not to go to war is the most agonizing decision a country can make.

The War Powers Resolution of 1973, which we will be reviewing today, was born of Congressional frustration over the Executive Branch’s commitment of forces in Southeast Asia in the 1960’s without appropriate involvement of Congress, a co-equal branch of government.

The law states, in essence, that the President must withdraw U.S. forces from any conflict within 60 days of their deployment, unless Congress has specifically authorized the continuation of their involvement.

Unfortunately, this has been a near-constant exercise in futility. Presidents from both parties have declared that the War Powers Resolution is inconsistent with the Constitution. No president in the past 35 years has filed a report pursuant to the War Powers Resolution.

And while the War Powers Resolution specifically directs the President to consult “in every possible instance” prior to introducing U.S. troops into harm’s way, there have been numerous instances of U.S. military action where there has been no prior meaningful consultation with Congress -- sometimes with calls coming while planes were in the air.

Examples include the invasions of Grenada in 1983 and Panama in 1989. The President believed he could deploy forces for short periods of time without adhering to the Resolution’s consultative requirements. Similar cases occurred in Somalia in 1992 and Haiti in 1994.

To be fair, presidents have sought at various times the collective judgment and backing of Congress prior to significant armed conflict, in part in response to congressional efforts to return to a more faithful adherence to the Constitution’s division of war powers. Major combat operations, including the Gulf War of 1991, the conflict in Afghanistan in 2001, and the 2003 Iraq War, were all the subject of congressional debate and a vote by both the House and the Senate resulting in an authorization to use U.S. armed forces.

The conflict in Kosovo was also subject to congressional votes, albeit conflicting ones – and usually negative ones, on the opposite sides of the same issue, in fact. And the House voted to limit U.S. military involvement in Central America during the Reagan Administration, which led to a scaling back of American intervention in the region.

But to the extent Presidents have negotiated around the War Powers Resolution, or not consulted Congress at all, the Resolution has not fulfilled its original purpose. It essentially remains a well-intentioned, yet toothless mechanism to force consultations and, if necessary, a withdrawal of U.S. armed forces should Congress not approve of their deployment within 60 days. Indeed, presidents, scholars, and even some members of this body continue to dismiss the Resolution as unconstitutional and unworkable.

I became particularly seized with the war powers question during Secretary Baker’s term as Secretary of the Treasury, when President Reagan authorized U.S. warships to defend re-flagged Kuwaiti tankers in the Gulf during the Iran-Iraq War. We could never quite get the Administration to admit that these war ships had been deployed into hostilities and were subject to the War Powers Resolution.

In close cooperation with my respected former colleagues Dante Fascell and Lee Hamilton, several of us undertook an effort to rewrite the War Powers Resolution and invite the President to seek prior authorization for military action.

The thrust of that legislation from 1988 – H.J. Res. 675 – was to require the President to consult with a permanent consultative group consisting of Congressional leadership and some members chosen by the Democratic Caucus and the Republican Conference of the House and Senate. It effectively preempted claims by the Administration that consultation was unnecessary or improvident.

I welcome a rekindling of this debate through the commendable work of the National War Powers Commission, chaired by Secretaries Baker and Christopher, which believes Congress should repeal the War Powers Resolution.

In its place, the Commission has recommended a consultative mechanism, and a procedure for Congress to take the measure of support for the President’s military actions. If such deployment does not command majority support, then any member of Congress may propose a joint resolution of disapproval that would require an end to the military involvement, with such resolution being subject to expedited procedures.

A resolution, of course, would be subject to a veto, which would have to be overcome by a two-thirds majority.

I’m not sure if the proposed legislation would sufficiently balance the authorities between the Executive and Legislative branches. However, I am certain that the proposed draft is a real and substantial improvement over the existing law. I’m gratified that the Commission has made this contribution to the war powers debate, and I can think of no better witnesses to address the critical issue of how to make the decision to go to war.