OPENING STATEMENT OF CHAIRMAN BILL DELAHUNT

 

At the March 13, 2008, hearing titled:

 

“War Powers for the 21st Century: The Congressional Perspective”

 

The Subcommittee will come to order.

 

Today we begin a series of hearings on what I believe is one of the most fundamental of the issues that come before us, the first branch of Government under the Constitution -- the decision to send the armed forces of the United States into combat.

 

Making such a decision is an acknowledgment that the international framework for cooperation and diplomacy – which the United States has created in large measure and applied consistently since World War II – has failed.

 

Making such a decision means that we are compelled to use violence for our survival and way of life. 

 

And that we must prepare ourselves for the eventual human losses and other consequences that war entails – including the inevitable strain on our economy that results from devoting our resources to war rather than to our collective prosperity.

 

This is truly a momentous decision that is beyond party – and must be above partisanship. 

 

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A decision to go to war should reflect the collective judgment of both the President and the Congress.  Our Founding Fathers crafted a Constitution that gives the Commander in Chief the power to conduct wars, but reserves to Congress the power to declare war. 

 

Their view was that the judgment of many in a matter of such profound consequence is preferable to the possible whim of a single individual. I believe they were right. 

 

Since the end of World War II, this balance has become skewed.  It has been more than 60 years since the United States actually declared war on another country – but we have engaged in hostile action on dozens of occasions – sometimes in partnership – when Congress has worked with the executive and formal authorization by this branch of government has been part of the process.   There have been other cases, however, in which there has been a unilateral decision by the executive to send troops into combat.

 

Restoring the balance envisioned by the Founders will – most likely – require not only legislative changes – but also a recognition of the wisdom of the Founders – as well as a reinvigorated awareness of our constitutional responsibility on the decision to use military force. 

 

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The confluence of the war in Vietnam and President Richard Nixon’s unparalleled claims to executive power provoked a response by Congress that led to the enactment – over his veto – of the War Powers Act.

 

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.

 

At this very moment, the Administration has claimed that upon the expiration of the United Nations mandate that lapses on December 31, 2008 – the current legal basis for our presence there – American military forces can continue to engage in combat without returning to Congress to secure new authority. In large measure, they base 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.  Later today I will be introducing legislation with Congresswoman Rosa DeLauro that calls for the extension of the U.N. mandate – and requires that any agreement authorizing U.S. forces to fight be approved by Congress.

 

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 that moment in history to engage on this issue.

 

Let me now turn to my friend and ranking member, the distinguished and open-minded gentleman from California, Mr. Rohrabacher, for any remakrs he may choose to make – but before I do, Dana, let me note with deep regret that this is our Subcommittee’s last hearing with your subcommittee staffer, the lovely and talented Phaedra Dugan.  Phaedra has been a joy to work with – and she has walked a difficult path, faithfully representing your interests while working in a cooperative and friendly spirit with me and my staff on those rare, very rare, occasions when you and I disagree on policy. 

 

Ms. Dugan, given the superior resources at the disposal of the majority, you have been often out-numbered this past year, but never out-witted.  On behalf of the members and staff of the Subcommittee, thank you, Phaedra, for your service to the Congress.  We will miss you.

 

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Thank you Mr. Rohrabacher. 

 

I want to welcome our guest, my good friend Congressman Walter Jones of North Carolina, to the dais, and ask unanimous consent that he be permitted to sit as a member of the Subcommittee today for purposes of taking testimony and asking questions.

 

Hearing no objection, so ordered.

 

Mr. Jones will be testifying before us today on the second panel on his legislation to replace the War Powers Resolution, but I wonder if he has any remarks that he would like to make at this time prior to the testimony of this panel?

 

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Now let us turn to our first panel.  For today’s hearing, we are hoping to benefit from the expertise of former Members of Congress and former staff.  Future hearings will bring to bear the expertise of constitutional scholars and former executive branch leaders. 

 

We are honored to have with us today our former colleagues David Skaggs and Mickey Edwards, the two chairs of the War Powers Commission of the Constitution Project, whose thoughtful and provocative report members of the Subcommittee will find in their packets.  After distinguished congressional careers, they evolved to a much higher life form – as professors, at the University of Colorado and Princeton, respectively.  Since then, Congressman Skaggs has become the executive director of the Colorado Department of Education,  and Congressman Edwards has become the Director of the Aspen Institute’s Rodel Fellowships in Public Leadership.  We are grateful for their presence here today, and look forward to hearing about the conclusions of their commission.

 

We are also pleased to have with us Steve Rademaker, whose long career in government includes service as counsel to this Committee, in the reign of Chairman Ben Gilman, and appointment as Assistant Secretary of State with responsibility for arms control matters.  Now the Senior Counsel at Barbour, Griffith, and Rogers, Mr. Rademaker continues to serve as the U.S. representative on the UN’s disarmament advisory board.  Steve, it’s nice to see you again.   

 

Gentleman, thank you for coming, and please, provide us a roadmap for our consideration of this important issue.  Let’s start with Representative Skaggs and take it in turn.

 

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INTRODUCTION OF THE HONORABLE WALTER JONES

 

Having heard a great deal about the problem of the war powers, we now are honored to have before us on this panel someone who has taken the time and made the effort to offer us a solution, my dear friend and someone I consider to be the conscience of the Congress, Representative Walter Jones.

 

Now Mr. Jones, as a Republican from usually Red North Carolina and I, as a Democrat from eternally Blue Massachusetts, don’t often find ourselves voting together.  Not only do we line up on opposite sides for procedural votes based on party, but it would hard to find two members of the House who are farther apart on the issues. 

 

Walter gets a 100 percent score for his voting record from the National Right to Life Committee, and I get a zero.  Then he gets the zero from a pro-United Nations group, the Campaign for UN Reform, and I get the 100.  The Christian Coalition gives him another 100, but says that I only vote for their position seven percent of the time.  A neoconservative foreign policy think-tank, the Center for Security Policy, gives him 76 percent, and me 15 percent.  The National Rifle Association gives him an A, and gives me an F.  You get the picture.

 

But we have finally found something on which we can agree: Mr. Jones’ proposed Constitutional War Powers Resolution, which modernizes the existing -- and barely functional -- 1973 War Powers Resolution.  I am proud to be a co-sponsor of this important legislation, and I look forward to convincing all the members of the Subcommittee to do the same.

 

Congressman Jones is to be commended for bringing this important proposal to our attention, and we hope to hear from him why he became seized with this issue, and the primary ways in which his legislation differs from the current War Powers Resolution.  While we are not marking up this legislation today, or even debating its finer points as we will when we prepare to consider it in Committee, I am pleased that we will have this opportunity to become familiar with it as a vehicle for discussion of the war powers issue.  Walter, please proceed.

 

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