The Presiding Officer (Mr. Johnson): The Senator from Virginia.
Mr. Warner: Mr. President, I congratulate the distinguished majority leader for a very powerful and very clear statement. I, too, join you in saying that it is our responsibility to ask questions. Questions have been asked throughout this debate. As best we can, we answered them.
But I think the distinguished leader has provided very helpful guidance in the uncertain days, months, and perhaps years to come. I commend you. As one of the cosponsors, I welcome your strong support.
Mr. Daschle: I thank the Senator from Virginia for his kind words.
Mr. Byrd: Will the Senator yield to me?
Mr. Daschle: I am happy to yield.
Mr. Byrd: Mr. President, I congratulate our leader. I congratulate him not only for his statement today, but I congratulate him on refusing to stand with other leaders of my party on the White House lawn. He has shown leadership. He has kept himself apart, kept himself in a position to make decisions. He hasn't rushed, pell-mell, to shake this piece of rag. He has done what leaders should do. He has stood aside and waited, helped to advise us and counsel with us. He is the one leader on this Hill in my party who didn't rush to judgment on this blank check that we are giving the President of the United States. I thank him. I congratulate him. I shall always praise him for that.
Mr. Daschle: Mr. President, I thank the distinguished Senator from West Virginia for his kind words and for his understanding and appreciation for the difficulties we face in this body as we make these momentous decisions.
Mr. Warner: Mr. President, regular order.
Mr. Leahy addressed the Chair.
The Presiding Officer: The regular order has been called for. Under the previous order, pursuant to rule XXII, the Chair lays before the Senate the pending cloture motion, which the clerk will report.
The legislative clerk read as follows:
The Presiding Officer: By unanimous consent, the mandatory quorum call under the rule is waived.Cloture Motion
We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move to bring to a close debate on the Lieberman-Warner amendment to S.J. Res. 45:
Thomas Daschle, Bill Nelson, Joseph Lieberman, Evan Bayh, Harry Reid, Pete Domenici, Joseph Biden, Patty Murray, Jay Rockefeller, Larry E. Craig, Trent Lott, John Warner, John McCain, Jesse Helms, Craig Thomas, Don Nickles, Frank H. Murkowski.
The question is, Is it the sense of the Senate that debate on amendment No. 4856, as modified, to S.J. Res. 45, a joint resolution to authorize the use of United States Armed Forces against Iraq, shall be brought to a close?
The yeas and nays are required under the rule.
The clerk will call the roll.
The senior assistant bill clerk called the roll.
The yeas and nays resulted--yeas 75, nays, 25, as follows:
| YEAS--75 | ||||
|---|---|---|---|---|
| Allard | Allen | Baucus | Bayh | Bennett |
| Biden | Bond | Breaux | Brownback | Bunning |
| Burns | Campbell | Cantwell | Carnahan | Cleland |
| Clinton | Cochran | Collins | Craig | Crapo |
| Daschle | DeWine | Domenici | Dorgan | Edwards |
| Ensign | Enzi | Feinstein | Fitzgerald | Frist |
| Graham | Gramm | Grassley | Gregg | Hagel |
| Harkin | Hatch | Helms | Hutchinson | Hutchison |
| Inhofe | Johnson | Kerry | Kyl | Landrieu |
| Lieberman | Lincoln | Lott | Lugar | McCain |
| McConnell | Mikulski | Miller | Murkowski | Nelson (FL) |
| Nelson (NE) | Nickles | Reed | Reid | Roberts |
| Rockefeller | Santorum | Schumer | Sessions | Shelby |
| Smith (NH) | Smith (OR) | Snowe | Stevens | Thomas |
| Thompson | Thurmond | Torricelli | Voinovich | Warner |
| NAYS--25 | ||||
| Akaka | Bingaman | Boxer | Byrd | Carper |
| Chafee | Conrad | Corzine | Dayton | Dodd |
| Durbin | Feingold | Hollings | Inouye | Jeffords |
| Kennedy | Kohl | Leahy | Levin | Murray |
| Sarbanes | Specter | Stabenow | Wellstone | Wyden |
Under the previous order, there will now be 60 minutes of debate on the Byrd amendment No. 4868. Who yields time?
Mr. Reid: Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time run equally during the quorum call.
The Presiding Officer: Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. Reid: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The Presiding Officer: Without objection, it is so ordered.
Mr. Reid: Mr. President, I did not see the Senator from Minnesota in the Chamber. It is my understanding he now wants to proceed with his 15 minutes.
The Presiding Officer: The Senator from Minnesota.
Mr. Dayton: Mr. President, I ask unanimous consent that I be added as an original cosponsor of Senator Byrd's amendment.
The Presiding Officer: Without objection, it is so ordered.
Mr. Dayton: Mr. President, I rise to support this amendment by the great senior Senator from West Virginia. It closely parallels an amendment which I filed and which, unfortunately, now that the Senate has made its determination to limit the amount of time and debate on this historic decision, I will not be bringing to the Senate for a vote.
A decision to rush to judgment on this matter has now been made by the Senate. I won't belabor the point except to say that in January of 1998, after Saddam Hussein had bounced U.N. inspectors out of Iraq, the Senate took 5 months to consider and finally approve a resolution which did not even authorize President Clinton to use force. In October, 1998, the Senate passes another resolution which again did not authorize the President of the United States to use force.
In 1990, the Senate took 5 months after Saddam Hussein invaded Kuwait, and that resolution was passed just days before President Bush committed this Nation to its first military engagement in the Persian Gulf war.
We have had a number of very valuable hearings in the Senate Armed Services Committee in the last weeks. I asked one panel of recently retired generals, three of whom were directly involved in the Persian Gulf war, whether the absence of a Congressional resolution or declaration of war had in any way prevented or impeded that military buildup preparatory to the engagement in January of 1991. They said, no, it did not. So I don't understand why, from any consideration-- military, diplomatic, or constitutional--we should be voting and rushing to this judgment this weekend, but we will.
We will be voting on what? What is it, S.J. Res. 46, that we are actually voting upon? It is a preapproval of whatever the President of the United States decides to do whenever. It is a vote for euphemisms such as "to use force" or "as he determines to be necessary." Why? Why are we rushing to this judgment at this time? So we can adjourn in the next few days and go home until next January, or until we decide whether the outcome of the November election will aid or impair our own political agendas?
Some of those concerns might seem justified, particularly as they relate to our own domestic concerns. But for decisions of war or peace, decisions about what is right for our national security, decisions about the life or death of Americans fighting on our behalf, decisions about the survival of the existing world order and even possibly the survival of our world as we know it, there are no justifications for political calculation or personal convenience. There should be only one consideration, and that is to do what is right for the country, as God gives each of us to see that right.
Yet S.J. Res. 46 preapproves any decision by the President of the United States to commit this Nation to war at some time in the future, with U.N. support or without it--unilaterally, bilaterally, multilaterally, preventatively, preemptively. Even other amendments that I will support, which have the best of intentions, fall into this trap: What do you do when you are preapproving a war? Put a limit on this but not for that; if this; if that. However, it is very hard to forecast events of this magnitude.
There is no need for us to try to do so. There are no good reasons for us to do so, except the need to preapprove something and then go home.
If we don't vote for the final resolution, we will be accused of not supporting the President, of not speaking with one voice to Saddam Hussein, to the United Nations, and to the world. Those are very serious accusations, that you don't support the President of the United States. I do support the President. He is my President. He is our President. I pray he will make the right decisions and get the credit. I pray he won't make the wrong decisions and get the blame.
But when I am asked to support this President, or any President, I need to understand what it is exactly that he wants us to do, what he intends for us to support. This President, as I understood his speech last Monday, is certainly not asking the Congress to declare war on Iraq today. He is wisely reserving that judgment. Why wouldn't we exercise the same wisdom?
The situation, as we have seen in the last weeks, is inherently fluid. New facts become known; old facts even change. I support the President's reserving judgment until after the United Nations decision, until it attempts to force Saddam Hussein's compliance, until we can determine the outcome of those efforts. During those critical days or weeks ahead, I will be around. I will be available at any time, day or night, whenever, to participate back here on the Senate floor in this momentous decision. All of us in this Chamber and in the House could be here within hours, should be, and would be if we were called upon to do so, whenever the President or this Congress believed that a decision to commit this Nation to war must be made.
As the President said Monday night, the time before that decision is limited. But the time for that decision is not now.
Another reason to follow this protocol, the reason for my amendment, the reason I support Senator Byrd's amendment, is that it is what the Constitution of the United States requires Congress to do--either declare war or not. It says right in that book--I don't carry it with me quite as faithfully as the great Senator from West Virginia, but I do happen to have my copy today--Congress shall declare war. That is about as clear and unambiguous a statement as could be made.
There are important reasons that Congress was given, and only Congress was given, that authority and that responsibility. Because it was considered by our Founders to be essential to the system of checks and balances upon which this Republic depends.
James Madison wrote a letter to Thomas Jefferson in 1798, less than a decade after the Constitution's ratification, in which he said:
The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has, accordingly, with studied care, vested the question of war in the Legislature. But the Doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it. For if the opinion of the President, not the facts & proofs themselves, are to sway the judgment of Congress in declaring war, and if the President in the recess of Congress create a foreign mission, appoint the minister, & negociate [sic] a War Treaty, without the possibility of a check even from the Senate, . . . it is evident that the people are cheated out of the best ingredients of their Government, the safeguards of peace which is the greatest of their blessings.
The subsequent 204 years have demonstrated many times the wisdom and foresight of our Constitution. Its principles should give special pause to this body when being admonished by the President, by any President, not to "tie my hands." Those words indicate a regrettable lack of regard for Congress and for our constitutional standing as a coequal branch of Government. Our Nation's Founders darn well wanted to tie a President's hands.
Thomas Jefferson wrote:
In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.
Those words are meant to apply to this President, to any President. Except in matters of war and peace? Especially in matters of war and peace. I would say this, the Constitution's wisdom has a very valuable perspective on the pressures and perils we face in this body today. Not only the perils in confronting a dangerous dictator, as we must, but also the perils in how we decide to do so.
Some might prefer to avoid the momentous decision the Constitution assigns us whether or not to declare war. Whether or not to send Americans into battle halfway around the world, where they would likely encounter the chemical or biological weapons we rightfully seek to spare this country. Some of those Americans will die too young, and others will suffer horrible wounds lasting for lifetimes. Iraqi children and their families will be destroyed in their own homes, schools, and mosques. The rest of the world will judge that decision and its consequences, which they could not escape.
We will read about it in the newspapers. We will watch its manifestations on television. We will probably attempt to share the credit if it turns out well, and avoid the blame if, God forbid, it doesn't. We will talk about that decision. We might even hold hearings on it, but we won't assemble in this Chamber where previous Senates once voted declarations of war, but not since World War II.
Mr. President, these decisions are ones we will live with for our lifetimes. They should not be made in these circumstances. We should follow the guidance we have seen evident from the changes in the administration's views over the last weeks. I support and applaud those changing perspectives. I respect a leader who can listen and learn, then adjust his views and decisions accordingly. I believe the wise counsel from Members of this body--Republicans, Democrats, and Independents--has been an important part of that process. I believe the American people, the collective wisdom of our fellow citizens, who overwhelmingly support the President, who overwhelmingly believe the President should consult with this body, who overwhelmingly believe the U.S. should act in concert with the U.N. and other nations of the world, and not alone, unilaterally, preemptively. I believe those public judgments, as we all manage to view them, probably daily in polling documents, have had enormous influence on the decisions that are going to be made.
We owe it to our responsibilities to what is best for this country; we owe it to the brave men and women who will have to carry out those decisions, to make them when they must be made, on the basis of the best, most current, and most complete information possible--knowing, even then, that we will still not have the certainty, clarity, foresight we would wish to have.
That is the wisdom of the Constitution. That is the wisdom of Senator Byrd's amendment. That is, I believe, the wisdom of the amendment I would have brought forth, which says simply the Congress shall go back to following the Constitution of the United States. The reasons for that document's decisions are as valid today as they were 213 years ago, and maybe some day--it will not be this week but soon, this body will review the decision not to follow its dictates and return to it. I look forward to that and, hopefully, Senator Byrd will be on the floor that day, as he deserves to be when that decision is made.
I yield the floor.
The Presiding Officer: Who yields time?
Mr. Nickles: Mr. President, I yield myself 5 minutes. Mr. President, I wish to respond to a couple of the statements made by the junior Senator from Minnesota. I don't think they are actually correct in categorizing what happened in 1998. I believe I heard him say then we were very deliberative and the resolution we passed did not authorize the use of force. Well, I will show you what we did in 1998.
In 1998, Saddam Hussein had continued his defiance of the U.N. He had not complied with any of the 16 resolutions. So the U.S. passed a resolution saying he should comply, Public Law 105-235, on August 14th. But the deliberative portion was introduced before the Senate on July 31, 1998--placed on the calendar July 27, measure laid before the Senate on July 31--and it passed the Senate with an amendment by unanimous consent. So it passed in one day. I don't remember the number of hours spent in debate, but it wasn't a lot. To say we spent months deliberating it is not accurate. The fact is we passed it in one day. And then to say it had no authorization for force, I don't believe is actually correct either. If you look at the resolved section--I put the 1998 resolution in the calendar because I think it is important. It goes through several items of noncompliance by Iraq. Basically, we are saying we should force or compel Iraq to comply. The resolved section says:
. . . the United States of America and Congress assembled, find the government of Iraq in a material and unacceptable breach of its international obligations, and therefore the President is urged to take appropriate action in accordance with the Constitution and relevant laws of the United States to bring Iraq into compliance with international obligations.
I believe in the appropriate action Congress was saying with a united voice: Take military action, if necessary, to get Saddam Hussein to comply with the U.N. resolution. That is what this resolution stated. We passed it unanimously. We also passed, in 1998, the Iraqi Liberation Act. This act did not authorize any additional military force. That is correct with this act, but not with Public Law 105-235.
When someone says we didn't authorize force in 1998--yes, we did. The Iraqi Liberation Act didn't have an authorization of force, but it did include a change of regime. It said Saddam Hussein should go. Again, we spoke with a united voice. We passed that by a voice vote. I might mention this to my colleagues. In the House, it passed by 360-38. In the Senate, we received it from the House on October 6 and passed it in the Senate on October 7. We passed it by unanimous consent. We passed it without objection.
This resolution says it should be the policy of the U.S. to have a regime change. That became the law of the land. It passed unanimously in the Senate with an overwhelming vote in the House. Then, the earlier resolution that passed on August 14 said the President is urged to take appropriate action to compel compliance with existing U.N. resolutions. That was a strong, united voice. Congress spoke together, overwhelmingly. It was not unanimous in the House, but it was unanimous in the Senate. Both of these resolutions passed in one day.
So for people who are saying we haven't been deliberative enough, and what is the consequence of this--what has changed? This Congress, Democrats and Republicans, this Senate unanimously told President Clinton to compel compliance. Also, we stated it was the public policy of Congress to have a regime change in Iraq. I want to clarify the Record and make sure we are factually accurate.
Congress spoke in a united fashion in 1998. It was proud to be part of that then, and I am proud to be part of the sponsorship of this resolution, which I believe will also pass with a very strong voice-- after much more extensive debate than we had in 1998. I thank my friend for yielding me the time.
Mr. Dayton: Will the Senator yield for a question?
Mr. McCain: Not on our time. If the Senator from West Virginia would like to yield the Senator time, I would be more than happy.
The Presiding Officer: The Chair advises the Senator from Minnesota that he has 1 1/2 minutes remaining.
Mr. Dayton: I will use that 1 1/2 minutes to respond. I was not here when those events occurred. I rely on the authorities and information available to me. I will note Senator Lott was quoted in several publications. On February 12, the then-majority leader said:
I had hoped that we could get to the point where we can pass a resolution this week on Iraq. But we really developed some physical problems, if nothing else. . . . So we have decided that the most important thing is not to move so quickly, but to make sure that we have had all the right questions asked and answered and that we have available to us the latest information about what is . . . happening with our allies in the world.
He went on to say:
The Senate is known for its deliberative actions. And the longer I stay in the Senate, the more I have learned to appreciate it. It does help to give us time to think about the potential problems and the risks and ramifications and to, frankly, press the administration.
The majority leader made that statement on the Senate floor on February 12. The resolution was passed and signed by President Clinton August 14, 1998, 6 months later.
Also, I am not a legal scholar, but in making my comments I cited the opinion of counsel at the Library of Congress and its Congressional Research Services. They opined--I realize lawyers and others can disagree----
The Presiding Officer: The Senator's time has expired.
Mr. Dayton: I ask for unanimous consent that I have 30 seconds more to finish my remarks.
Mr. McCain: I object.
The Presiding Officer: Objection is heard.
Mr. Byrd: I yield the Senator 2 minutes or whatever he needs.
Mr. President, I ask unanimous consent that Senator Dayton's name be added as a cosponsor of my amendment.
The Presiding Officer: Without objection, it is so ordered.
Mr. Dayton: I thank the Senator from West Virginia.
Mr. President, the opinion stated its judgment that since the document in 1998 urged the President to follow the actions which the Senator from Oklahoma has accurately described, it did not constitute an authorization under the War Powers Act. Furthermore, in the absence of any reference to authorization under the War Powers Act, which the resolution before us today contains, it did not provide that authority. I thank the Chair. I yield back time.
The Presiding Officer: Who yields time?
Mr. Byrd: Mr. President, how much time do I have?
The Presiding Officer: The Senator has 29 minutes 20 seconds.
Mr. Byrd: How many minutes?
The Presiding Officer: Twenty-nine.
Mr. Byrd: I thank the Chair. Mr. President, I ask unanimous consent that my time on this amendment not count against my hour under cloture.
The Presiding Officer: Is there objection?
Mr. McCain: I object.
The Presiding Officer: Objection is heard.
Mr. Byrd: This shows the patience of a Senator. This clearly demonstrates that the train is coming down on us like a Mack truck, and we are not even going to consider a few extra minutes for this Senator.
Mr. Byrd: Mr. President, I yield 5 minutes to my friend from Pennsylvania.
Mr. McCain: Mr. President, in deference----
Mr. Byrd: On the Senator's time.
Mr. McCain: On my time. In deference to the Senator from West Virginia, on this one occasion, given all the circumstances, I will not object to it not counting against the Senator's hour.
Mr. Byrd: Mr. President, I thank my friend.
The Presiding Officer: Is there objection? Without objection, it is so ordered.
Mr. Byrd: Mr. President, I yield 5 minutes to the distinguished Senator from Pennsylvania, Mr. Specter:
Mr. Specter: Mr. President, I thank the distinguished President pro tempore for yielding me 5 minutes.
I do support his amendment which has two provisions. First:
Nothing . . . is intended to alter the constitutional authorities of the Congress to declare war, grant letters of Marque and Reprisal, or other authorities invested in Congress by Section 8, Article I of the Constitution.
I think this provision is necessary, although customarily you would not think that you would need a statute to say the Constitution governs. However, I have expressed on the floor of the Senate my concern of the constitutionality of the delegation of authority to the President here.
Congress has the authority to declare war. The authorization for the use of force is a practical equivalent. What we are doing is saying the President may decide when to use that force and, in effect, decide when the war will start, or really to make a determination as to when war is declared. So I think that it is important to have this sort of provision, although its importance is hard to evaluate historically.
The second part of the pending amendment of the Senator from West Virginia is:
. . . shall be construed as granting any authority to the President to use the United States Armed Forces for any purpose not directly related to a clear threat of imminent, sudden, and direct attack upon the United States, its possessions, or territories, or the Armed Forces of the United States, unless the Congress of the United States otherwise authorizes.
The language of "clear threat of imminent, sudden, and direct attack" has been inserted in place of the language "the existing threat posed by Iraq." This does call for a more precise determination of the need for preemptive action, and I think is sound. Ultimately, it is not going to detract from the authority of the President because the resolution allows the President to "use all means that he deems to be appropriate," which is very broad authority.
The language of the pending Byrd amendment is consistent with one of the earliest articulations of the concept of self-defense. Secretary of State Daniel Webster in 1842, referring to self-defense in an anticipatory sense, stated that its use be "confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment of deliberation."
Hugo Grotius, considered the father of international law, said in his 1925 treatise that a nation may use self-defense in anticipation of attack when there is "present danger," which is a broader definition. Grotius further said:
It is lawful to kill him who is preparing to kill.
Elihu Root, a distinguished scholar on international law, said in 1914 that international law did not require a nation to wait to use force in self-defense "until it is too late to protect itself."
I think the language of the pending amendment offered by the Senator from West Virginia is helpful in providing assurance that preemptive force is really necessary. We know President Bush said he does not intend to use this military force unless absolutely necessary and has already made a determination that he thinks there is an imminent threat from Iraq. Some of the information which has been presented, partly in closed session, supports the President's concern along that line, but I do think this language is helpful. Therefore, I support it.
I thank the Chair and yield the floor.
The Presiding Officer (Mrs. Clinton): The Senator from Arizona.
Mr. McCain: Madam President, I wish to say very briefly that I understand people have a desire to speak. We have a number of Senators who have not spoken on this issue. It is already looking as if we may be here well into this evening. From now on, I will be adhering strictly to the rules according to postcloture. I hope my colleagues will be understanding because we have to resolve this issue.
I yield the floor.
The Presiding Officer: Who yields time?
The Senator from West Virginia.
Mr. Byrd: Madam President, I believe the distinguished Democratic whip was able to get unanimous consent last night for my amendment No. 4868 to be modified to remove paragraph 2. It so states in the Congressional Record on page S10217; am I correct?
The Presiding Officer: The Chair believes the Record is in error and that only amendment No. 4869 was modified.
Mr. Byrd: On what basis--Madam President, I hope this time is not being charged. We are trying to clarify something.
The Presiding Officer: Without objection, it is so ordered.
Mr. Byrd: On what basis does the Chair maintain that the Record is in error in that portion of the Record from which I read on page S10217? What is the basis for the Chair stating that Record portion is in error?
I do not question the integrity of the Chair. I am only asking why does the Chair state--I know the Chair is being advised to that effect--why are we to say that this Record, as it is clearly written, is in error?
The Presiding Officer: The Chair is relying on the Journal of proceedings.
Mr. Byrd: And what does the Journal say?
The Presiding Officer: The Journal indicates that only amendment No. 4869 was modified.
Mr. Byrd: May I ask the distinguished majority whip, is that statement by the Chair in accordance with his understanding?
Mr. Reid: I say to my friend from West Virginia, I read directly from the paper that the Senator gave me. There were two unanimous consent requests on it. The one was not acceptable. The other was, and I read that into the Record. As I recall, it was changing section 4 to 3, or 3 to 4. That is what I submitted.
Mr. Byrd: There were two requests, one changing the section numbers, and I am sure that one was agreed to.
Mr. Reid: Yes.
Mr. Byrd: The other one, according to this Record, was also agreed to.
Mr. Reid: No. That is the only one that--in fact, I said on the Record the other was not agreed to.
Mr. Byrd: May I read the Record. It is very short.
Mr. Reid: Mr. President, this has been cleared with the minority. Mr. President, on behalf of Senator Byrd, I ask unanimous consent to modify his amendment No. 4868 to remove paragraph 2, and further I ask consent to modify amendment No. 4869 to change references to section 3(a) to 4(a).
The Presiding Officer: Without objection, it is so ordered.
Mr. Reid: I say to my friend from West Virginia, I had the paper here and the clerk took that paper. Maybe they made a mistake. But there is no question in my mind whatsoever--as I told the Senator this morning when he came in--that the one had been approved, the other had not.
Mr. Byrd: Yes. The whip did tell me that, but when I looked at the Record, I saw, by the Record at least, it said that both requests were agreed to. I am not going to argue this point. I am going to take the distinguished whip's word, which is good for me at all times.
Mr. Reid: I say to my friend from West Virginia, I appreciate that very much. In fact, there are a lot of things going on I may not be quite certain on, but I am absolutely, unqualifiedly certain of what I did last night.
Mr. Byrd: Madam President, I have absolute and complete faith in the integrity of the distinguished Senator from Nevada, and I thank the Chair, with the greatest of respect. I thank the Assistant Parliamentarian as well, for whom I have the greatest respect.
Madam President, how much time do I have remaining?
The Presiding Officer: Twenty-three minutes.
Mr. Byrd: On this amendment?
The Presiding Officer: On this amendment, that is correct.
Mr. Byrd: Madam President, a point I want to make about this discussion that ensued after the statement was made by the distinguished Senator from Minnesota: There were references made to Public Law 105-235, August 14, 1998. Here is the resolving clause which has been quoted by the distinguished Republican whip:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, . . . .
That the government of Iraq is in material and unacceptable breach of its international obligations, and therefore the President is urged to take appropriate action in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations. Approved August 14, 1998.
Well, so what? What does that prove? What does that prove? Somebody tell me. Let's read it again. The resolving clause says that the Government of Iraq is in material and unacceptable breach of its international obligations. That is okay. But get this: And therefore the President is urged to take appropriate action.
What does that mean? There is nothing definitive about that. That is ambiguous. It is not contemporaneous with today's question. It is ambiguous. It is vague. What would that prove in a court if the Supreme Court of the United States were to take this up? What would those who read this piece of junk maintain that this says? It is plain. The President is urged--well, what does that mean, "urged"?--to take appropriate action. What is that? That is not a declaration of war. What is that? What does that mean, "to take appropriate action"? Well, you can guess, I can guess, he can guess, he can guess. Anybody can guess.
"Urges the President to take appropriate action in accordance with the Constitution . . . ." Now, that is fine. It is in accordance with the Constitution. Then that would say that Congress has the power to declare war.
"In accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations." What is he supposed to do? What is the President being urged to do to bring Iraq into compliance with its international obligations? Anybody's guess. Why, surely this great country of ours is not going to be able to launch a war on the basis of that ambiguous and vague language.
I wish those who are continuing to refer to this Public Law 105-235 and the so-called relevant U.N. resolutions would explain what they mean. I hear that over and over again. In connection with the resolution that is before this Senate today, it refers to all relevant U.N. Security Council resolutions. "All relevant . . . ." What does that mean? And they keep referring to 660 and 678 and 687. I would like to discuss those resolutions with those who will do so. I hope they come on the floor. Where are they? Where are these men of great strength? Let them come to the floor. I want to debate with them these so-called resolutions.
In this resolution that is before the Senate, S.J. Res. 46, it refers to relevant resolutions. They keep talking about the relevant resolutions. What resolutions are they talking about enforcing? Are they talking about 660? Are they talking about 678? No. 678 was adopted on November 29, 1990. Is that what they are talking about? U.N. Resolution 687 was the enforcement resolution. That was the resolution that authorized the member states to act to uphold Resolution No. 660. But that conferring of authorization was wiped out. No. 678 was wiped out by 687 when Iraq contacted the Security Council and accepted 687. It was wiped out. So I am prepared to argue that. I do not want to do it on my flimsy 1 hour, but I am prepared.
I have heard the Senator from Connecticut--he is not in the Chamber right now, but he will be back. I have heard him and others refer to the so-called relevant resolutions. They have been wiped out. They are gone, and no single member state can revive them. They were extinguished on April 6, 1991, when Iraq signified to the Security Council that it accepted the terms of 687.
Now we can talk about that at a later time. I would love to get into it. I would like to get into a discussion on that, but for now, suffice it to say, what I am saying is this resolution we are talking about would accept as fact certain things that are not facts--this blank check we have been talking about that we are going to turn over to this President of the United States, the power to determine when, where, how, and for how long he will use the military forces of the United States. It is flimsy. That resolution is full of holes. The whereas clauses are full of holes. Now they have been wiped out by unanimous consent so they are no longer "whereas" but "since." It is flimsy. Full of holes. Ambiguities. Statements of facts that are not facts. I am ready to debate that at any time.
Mr. Durbin: Will the Senator yield?
Mr. Byrd: I am happy to yield.
Mr. Durbin: I hope Members will carefully read this amendment by Senator Byrd. This amendment says two things. One of these things should not even be controversial. It asserts the constitutional authority of this Chamber and the U.S. Congress to declare war. The Senator and I have stood together on this floor.
Mr. Byrd: Here it is, my Constitution.
Mr. Durbin: I thought you might have your Constitution with you.
The Senator and I have stood on the floor and argued this point. Sometimes we did not fare so well. Keep in mind there was a question at the beginning of this debate about Iraq as to whether or not Congress would be engaged. Some argued that the President had the authority of his father's resolutions.
The second point made by Senator Byrd in this resolution is one I hope you will read carefully because I address part of this in an amendment I will offer later. He establishes a standard by which we would declare war. A standard is stated clearly: A clear threat of imminent, sudden, direct attack upon the United States, its possessions or territories, or the Armed Forces.
I hope Members of the Senate will read that. If that is not a standard by which we will measure whether this Nation will dedicate its Armed Forces and risk the lives of Americans in combat and the lives of innocent victims, I cannot imagine what we are going to debate. To take any other standard is to take the power away from Congress to declare war. This is a constitutional resolution. I applaud the Senator from West Virginia for offering it.
Mr. Byrd: I thank the distinguished Senator. How much time remains?
The Presiding Officer: Thirteen minutes.
Mr. Byrd: I hope Senators will show an abundance of mercy before the day is over and perhaps give me some more time.
Mr. President, this week the Senate is considering a very important resolution. The language of this resolution has been touted as a bipartisan compromise that addresses the concerns of both the White House and the Democratic leadership in Congress. But the only thing that I see being compromised in this resolution is this Constitution of the United States, which I hold in my hand, and the power that Constitution gives to Congress to declare war. This resolution we are considering is a dangerous step toward a government in which one man at the other end of this avenue holds in his hand the power to use the world's most powerful military force in whatever manner he chooses, whenever he chooses, wherever he chooses, and wherever he perceives a threat against national security.
The Bush administration has announced a new security doctrine that advocates acting preemptively to head off threats to U.S. national security. Much has been said about the diplomatic problem with this doctrine. But we should also recognize that the administration's new approach to war may also pose serious problems for our own constitutional system.
In the proposed use-of-force resolution, the White House lawyers claim "the President has authority under the Constitution to use force in order to defend the national security interests of the United States."
It says no such thing. I dare them to go to the Constitution and point out where that Constitution says what they say it said. They cannot do it. I know the job of any good lawyer--I have never been a practicing lawyer, but I know the job of a good lawyer is to craft legal interpretations that are most beneficial to the client. But for the life of me, I cannot find any basis for such a broad, expansive interpretation in the interpretation of the Constitution of the United States. Find it. Show it to me. You can't do it.
Where in the Constitution is it written that the title of Commander in Chief carries with it the power to decide unilaterally whether to commit the resources of the United States to war? Show it to me, lawyers, lawyers of the White House, or lawyers in this body. Show it.
There is a dangerous agenda, believe me, underlying these broad claims by this White House. The President is hoping to secure power under the Constitution that no President has ever claimed before. Never. He wants the power--the Bush administration wants that President to have power to launch this Nation into war without provocation and without clear evidence of an imminent attack on the United States. And we are going to be foolish enough to give it to him. I never thought I would see the day in these 44 years I have been in this body, never did I think I would see the day when we would cede this kind of power to any President. The White House lawyers have redefined the President's power under the Constitution to repel sudden acts against the United States. And he has that power, to repel sudden, unforeseen attacks against the United States, against its possessions, its territories, and its Armed Forces.
But they suggest he could also justify military action whenever there is a high risk of a surprise attack. That Constitution, how they would love to stretch it to give this President that power which he does not have. Those White House lawyers would have us believe that the President has independent authority not only to repel attacks but to prevent them. How silly. You cannot find it in that Constitution.
The White House wants to redefine the President's implied power under the Constitution to repel sudden attacks, suggesting that the realities of the modern world justify preemptive military action whenever there is a high risk of a surprise attack. What in the world are they teaching in law school these days? What are they teaching? I never heard of such as that when I was in law school. Of course I had to go at night. I had to go 10 years to get my law degree. In the national security strategy released last week, a few days ago, the President argued--let me tell you what the President argued--we must adapt the concept of imminent threat to the capabilities of today's adversary. Get that.
Defense Secretary Rumsfeld echoed this sentiment when he told the Senate Armed Services Committee: I suggest that any who insist on perfect evidence are back in the 20th century and still thinking in pre-9/11 years.
What a profound statement that was. How profound. Perhaps the Secretary of Defense ought to go back to law school, too. I don't believe he was taught that in law school.
The President does not want to shackle his new doctrine of 20th century ideas of war and security, much less any outdated notion from the 18th century about how this Republic should go to war. The Bush administration thinks the Constitution, with its inefficient separation of powers and its cumbersome checks and balances--they are cumbersome-- has become an anachronism in a world of international terrorism and weapons of mass destruction.
They say it is too old. This Constitution, which I hold in my hand, is an anachronism. It is too old. It was all right back in the 19th century. It was all right in the 20th century. But we are living in a new time, a new age. There it is, right up there, inscribed, "Novus ordo seclorum." A new order of the ages. New order of the ages.
This modern President does not have time for old-fashioned political ideas that complicate his job of going after the bad guys single- handedly.
And make no mistake, the resolution we are considering will allow the President to go it alone at every stage of the process. It will be President Bush, by himself, who defines the national security interests of the United States. It will be President Bush, by himself, who identifies threats to our national security. It will be President Bush, by himself, who decides when those threats justify a bloody and costly war. And it will be President Bush, by himself, who determines what the objectives of such a war should be, and when it should begin and when it should end.
The most dangerous part of this modernized approach to war is the wide latitude the President will have to identify which threats present a "high risk" to national security. The administration's National Security Strategy briefly outlines a few common attributes shared by dangerous "rogue states," but the administration is careful not to confine its doctrine to any fixed set of objective criteria for determining when the threat posed by any one of these states is sufficient to warrant preemptive action.
The President's doctrine--and we are about to put our stamp on it, the stamp of this Senate. The President's doctrine, get this, gives him--Him? Who is he? He puts his britches on just the same way I do. He is a man. I respect his office. But look what we are turning over to this man, one man.
The President's doctrine gives him a free hand to justify almost any military action with unsubstantiated allegations and arbitrary risk assessments.
Even if Senators accept the argument that the United States does not have to wait until it has been attacked before acting to protect its citizens, the President does not have the power to decide when and where such action is justified, especially when his decision is supported only by fear and speculation. The power to make that decision belongs here in Congress. That is where it belongs. That is where this Constitution vests it. The power to make this decision belongs to Congress and Congress alone.
Ultimately, Congress must decide whether the threat posed by Iraq is compelling enough to mobilize this Nation to war. Deciding questions of war is a heavy burden for every Member of Congress. It is the most serious responsibility imposed on us by the Constitution. We should not shrink from our duty to provide authority to the President where action is needed. But just as importantly, we should not shrink from our constitutional duty to decide for ourselves whether launching this Nation into war is an appropriate response to the threats facing our people--those people looking, watching this debate through that electronic lens there. They are the ones who will have to suffer. It is their sons and daughters whose blood will be spilled. Our ultimate duty is not to the President. They say: Give the President the benefit of the doubt. Why, how sickening that idea is. Our ultimate duty is not to the President of the United States. I don't give a darn whether he is a Democrat or Republican or an Independent--whatever. It makes no difference. I don't believe that our ultimate duty is to him. Our ultimate duty is to the people out there who elected us.
Our duty is not to rubber-stamp the language of the President's resolution, but to honor the text of the Constitution. Our duty is not to give the President a blank check to enforce his foreign policy doctrine, but to exercise our legislative power to protect the national security interests of this Republic.
Our constitutional system was designed to prevent the executive from plunging the Nation into war in the name of contrived ideals and political ambitions. The nature of the threats posed by a sudden attack on the United States may have changed dramatically since the time when Constitution was drafted, but the reasons for limiting the war powers of the President have not changed at all. In fact, the concerns of the Framers are even more relevant. Talk about this being old fashioned. The concerns of the Framers are even more relevant to the dangerous global environment in which our military must now operate, because the consequences of unchecked military action may be more severe for our citizens than ever before.
Congress has the sole power under the Constitution to decide whether the threat posed by Iraq is compelling enough to mobilize this nation to war, and no Presidential doctrine can change that. If President Bush wants our foreign policy to include any military action, whether for preemption, containment, or any other objective, he must first convince Congress that such a policy is in the best interest of the American people.
The amendment I am offering reaffirms the obligation of the Congress to decide whether this country should go to war. It makes clear that Congress retains this power, even in the event that we pass this broad language, which I believe gives the President a blank check to initiate war whenever he wants, wherever he wants, and against any perceived enemy he can link to Iraq. My amendment makes clear that the President has the power to respond to the threat of an imminent, sudden, and direct attack by Iraq against the United States, and that any military action that does not serve this purpose must be specifically authorized by the Congress.
Other Senators have said on the floor that the language of this resolution does not give the President a blank check, and they have said that this resolution is narrowly tailored to Iraq. I do not read the resolution that way, but I hope that the President does. I hope the President reads this resolution as a narrowly crafted authorization to deal with Iraq's weapons of mass destruction, and not as an open-ended endorsement of his doctrine of preemptive military action.
We should all hope that the President does not fully exercise his authority under this resolution, and that he does not abuse the imprecise language Congress may ultimately adopt. But I believe that Congress must do more than give the President a blank check and then stand aside and hope for the best. Congress must make clear that this resolution does not affect its constitutional power to declare war under Article I, section 8 of the Constitution; otherwise, this resolution may appear to delegate this important legislative function to the executive
My amendment also clarifies the intent of this resolution is limited to authorizing a military response to the threat of an Iraqi attack upon the United States. Congress must ensure that the broad language of this resolution does not allow the President to use this authority to act outside the boundaries of his constitutional powers. This amendment affirms the constitutional requirement that the President must have congressional authorization before initiating military action for any purpose other than defending the United States against an imminent, sudden, and direct attack. We must not provide the temptation to this President, or any president, to unleash the dogs of war for reasons beyond those anticipated by the Congress.
The power of Congress to declare war is a political check on the President's ability to arbitrarily commit the United States to changing military doctrines, and the evolving nature of war and security threats does not change the language of the Constitution. The President cannot use the uncertainty of terrorist threats to confuse the clearly defined political processes required by the Constitution, and Congress should not rush to endorse a doctrine that will commit untold American resources to unknown military objectives.
The President admits in his National Security Strategy that "America's constitution has served us well." But his actions suggest that he feels this service is no longer needed. Congress should ensure that the Constitution continues to serve our national security interests by preventing the United States from plunging headlong into an ever-growing war in the Middle East. I urge my colleagues to support this amendment in order to preserve the constitutional system of checks and balances that the founders of this republic valued so highly.
