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S. HRG. 111–255 

WAR POWERS IN THE 21ST CENTURY 

HEARING 

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 28, 2009 

Printed for the use of the Committee on Foreign Relations 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

COMMITTEE ON FOREIGN RELATIONS

JOHN F. KERRY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut 

RUSSELL D. FEINGOLD, Wisconsin 

BARBARA BOXER, California 

ROBERT MENENDEZ, New Jersey 

BENJAMIN L. CARDIN, Maryland 

ROBERT P. CASEY, JR., Pennsylvania 

JIM WEBB, Virginia 

JEANNE SHAHEEN, New Hampshire 

EDWARD E. KAUFMAN, Delaware 

KIRSTEN E. GILLIBRAND, New York 

RICHARD G. LUGAR, Indiana 

Republican Leader designee 

BOB CORKER, Tennessee 

JOHNNY ISAKSON, Georgia 

JAMES E. RISCH, Idaho 

JIM DEMINT, South Carolina 

JOHN BARRASSO, Wyoming 

ROGER F. WICKER, Mississippi 

DAVID MCKean, Staff Director

KENNETH A. MYERS, JR., Republican Staff Director

(II)

C O N T E N T S 

Page 

Baker, Hon. James A., former Secretary of State, Houston, TX, accompanied 

by Hon. Lee H. Hamilton, president and director, Woodrow Wilson International Center, Washington, DC ....................................................................... 4 

Prepared statement of Mr. Baker ................................................................... 6 

Response of Mr. Hamilton to question submitted for the record by Senator Russell D. Feingold ............................................................................... 32 

Christopher, Hon. Warren M., former Secretary of State, Los Angeles, CA ...... 7 

Prepared statement .......................................................................................... 9 

Responses to questions submitted for the record by Senator Russell D. 

Feingold ......................................................................................................... 30 

Kerry, Hon. John F., U.S. Senator from Massachusetts, opening statement ..... 1 

Lugar, Hon. Richard G., U.S. Senator from Indiana, opening statement ........... 2 

APPENDIX

National War Powers Commission Report ............................................................ 33 

(III)

(1) 

WAR POWERS IN THE 21ST CENTURY 

TUESDAY, APRIL 28, 2009 

U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, DC. 

The committee met, pursuant to notice, at 10:05 a.m., in room 

SD–419, Dirksen Senate Office Building, Hon. John F. Kerry 

(chairman of the committee) presiding. 

Present: Senators Kerry, Feingold, Kaufman, Lugar, Corker, and 

Barrasso. 

OPENING STATEMENT OF HON. JOHN F. KERRY, 

U.S. SENATOR FROM MASSACHUSETTS 

The CHAIRMAN. The hearing will come to order. 

Today we have the privilege of hosting three of our Nation’s most 

distinguished statesmen, and they are here to discuss one of the 

most vital questions that comes before our democracy, the question 

of how America goes to war. 

Secretaries Baker and Christopher and Chairman Hamilton, 

we’re very grateful to you for joining us today, and we’re very 

grateful to you for the work you’ve put into trying to find a practical solution to this complex problem that has dogged us for decades now. Your experience in government and your firsthand 

knowledge of this issue and its application make your testimony 

before this committee today particularly valuable. We look forward 

very much to hearing your views. 

Let me just share a couple of quick thoughts. We all understand 

that what brings us here is the fact that there’s a fundamental tension in the way that America decides to go to war. The President 

is Commander in Chief of the Armed Forces, while Congress has 

the power to declare war. But, how those constitutional powers 

interact has been the subject of considerable debate these last 

years. 

Uncertainty over Congress’s role in two successive wars—Korea 

and then Vietnam—led to the passage of the War Powers Resolution in 1973. I think it’s fair to say it was significantly a reaction 

to America’s longest war, one that pulled the country apart and left 

many questions about responsibilities and Presidential decisions. 

The resolution, which today’s witnesses recommend repealing, 

has been controversial ever since it was enacted over President 

Nixon’s veto. The 1973 resolution represented Congress’s best effort 

to try to clarify and make concrete its role in the decision to go to 

war. That resolution required that the President consult with 

Congress prior to, and on a regular basis after, U.S. forces were 

2 

deployed. More controversially, the law required that the President 

withdraw our forces within 60 days of their deployment into combat, absent specific congressional authorization or an extension of 

the deadline by Congress. 

This approach raised important questions. Some believe that imposition of a deadline for withdrawal inappropriately constrained 

the Executive and projected uncertainty to enemies. Others more 

sympathetic to legislative power in the decisionmaking argued that 

allowing the President to go to war for 60 days or longer without 

authorization is an indefensible abdication of Congress’s prerogative under the Constitution; a prerogative of Congress to declare 

war. 

What is clear to all is that the 1973 War Powers Resolution has 

simply not functioned as intended. Presidents since Nixon have 

questioned the statute’s constitutionality. None have complied by 

filing a report that would trigger a 60-day deadline for congressional reauthorization. 

Over the years, there have been various efforts within Congress, 

including by this committee, to amend the War Powers Resolution. 

Nonetheless, the fundamental issue has remained unresolved. 

The National War Powers Commission consciously avoided trying 

to resolve the basic constitutional debate, and also avoided trying 

to define the contours of each branch’s powers. And I must say, I 

respect the pragmatism of that approach. 

The Commission’s proposal is, instead, the War Powers Consultation Act of 2009. It would repeal the 1973 War Powers Resolution 

and provide a new framework for interaction between Congress and 

the President. The proposed statute would require that the President consult with a newly formed Joint Congressional Committee 

prior to ordering the deployment of U.S. Armed Forces into, ‘‘significant armed conflict’’ or, under certain circumstances, within 3 

days of deployment. The statute would also create a mechanism to 

ensure that both Houses of Congress vote on a particular military 

action within 30 days of that deployment. 

In their work on this issue, our witnesses today have struggled 

to grapple with the exigencies of a global struggle against terrorism 

and the changing nature of America’s military involvements, which 

today obviously look very different than they did in 1973. As one 

would expect of an effort from a group of statesmen who have tackled some of the world’s most intractable conflicts, this is a thoughtful and a formidable effort, and it is very much worthy of this committee’s further, and the Congress’s further, consideration. 

I’m sure that our witnesses will go into more detail and specifics 

of their proposal, but, again, let me just thank each of them for 

their contribution, not just to this particular work, but to our country’s work throughout their public service. 

And it’s my pleasure to turn to the ranking member, Senator 

Lugar. 

OPENING STATEMENT OF HON. RICHARD G. LUGAR, 

U.S. SENATOR FROM INDIANA 

Senator LUGAR. Well, thank you very much, Mr. Chairman. 

As you mentioned, the committee meets today to discuss important questions about the respective roles of the President and the 

3 

Congress in decisions to use force. And we’re really very fortunate 

to have very dear friends with us today, Secretary of State Jim 

Baker and Warren Christopher, and my colleague in the Indiana 

delegation for so many years, Congressman Lee Hamilton. Each of 

them has unique insights into these issues, both from experience 

in government, and from their study as members of the National 

War Powers Commission. We welcome them to the committee and 

look forward to their testimony. 

Sending members of the United States military into harm’s way 

is perhaps the most significant decision our Government can make. 

We know from long experience that a military mission is more 

likely to be successful if it is broadly supported by the American 

people. Joint actions by the President and the Congress in authorizing the use of force can play an important role in building and 

expressing such support. In addition, both allies and enemies will 

be more convinced of the determination of the United States to 

achieve its objectives for which the force is being used if those objectives are understood to be broadly supported by both branches. 

Under our Constitution, decisions about the use of force involve 

the shared responsibilities of the President and the Congress, and 

our system works best when the two branches work cooperatively 

in reaching such decisions. While this is an ideal toward which the 

President and Congress may strive, it has sometimes proved to be 

very hard to achieve in practice. 

Today’s hearing gives us an opportunity to consider the framework in which decisions about the use of force are made, and 

whether there are ways in which it might be improved. Questions 

of how best to harmonize the roles of the President and the Congress on the use of force have proved vexing since the founding of 

the Republic. The Framers of the U.S. Constitution designated the 

President as Commander in Chief of the Armed Forces, but entrusted to the Congress the authority to declare war. 

In the period following the Vietnam war, the Congress passed 

the 1973 War Powers Resolution in an effort to regularize Executive/congressional cooperation on the use-of-force decisions, and, in 

particular, to ensure an appropriate role of the Congress in such 

matters. It provides requirements for Presidential consultation 

with, and reporting to, the Congress on issues related to the use 

of force, and a requirement that the President terminate uses of 

armed force not specifically authorized by the Congress within the 

timeframe specified by the resolution. 

The War Powers Resolution has not proven to be a panacea, and 

Presidents have not always consulted formally with the Congress 

before reaching decisions to introduce U.S. force into hostilities, 

and may have objected to the assertion that inaction by Congress 

can compel the termination of a military action initiated by the 

President. The Congress has not always taken up legislation authorizing or expressing disapproval of Presidential uses of force. Both 

Presidents and Members of Congress have voiced dissatisfaction 

with the resolution’s operation and practice. 

Interaction between the President and the Congress related to 

the War Powers Resolution has also been affected by inherent ambiguities. In today’s world, many potential military actions are very 

small scale, having a very limited purpose or target terrorists or 

4 

other nonstate combatants. The recent rescue operation mounted 

against the Somali pirates is an example, and combined all three 

of these conditions. Does every movement of the military ordered 

by the Commander in Chief that might lead to some use of force 

require congressional consultations? 

Ambiguity also exists about what constitutes adequate notification and consultation. On April 14, 1986, for example, I was called 

to the White House at 4 p.m. along with other Senate and House 

leaders. We were informed that, 2 hours earlier, United States warplanes had taken off from airbases in the United Kingdom headed 

for targets in Libya. They were due to strike that country at about 

7 p.m. During the ensuing 21⁄2-hour meeting, we received a full 

briefing and engaged in a detailed conversation with President 

Reagan and national security officials on the bombing operation 

and its implications. In my judgment, this meeting constituted 

acceptable consultation, given the need for secrecy and the possibility that the planes could have turned around had the President 

encountered strong opposition from the group assembled. But, some 

commentators believed the meeting fell well short of the requirements for full congressional consultation. 

The report of the National War Powers Commission proposes a 

new statute to replace the War Powers Resolution. Under the proposed statute, the President would be required to consult with a 

newly created Joint Congressional Consultation Committee, in 

most cases before ordering the deployment of United States Armed 

Forces into significant armed conflict. The statute would also 

require both Chambers of Congress to hold a timely up-or-down 

vote regarding any significant armed conflict in which the President introduces U.S. forces. The proposed statute further provides 

for the President to consult with, and report to, the Congress regularly during the course of significant armed conflicts in which the 

United States forces are engaged. 

We look forward the testimony of our witnesses about the issues 

which the Commission has grappled with in formulating this proposal, and ways in which they believe their proposed approach 

would improve collaboration between the President and Congress 

on decisions relating to the use of force. 

I thank the chairman again for calling the hearing. I look forward to our discussion. 

The CHAIRMAN. Thank you very much, Senator Lugar. 

Again, we welcome you. None of you are strangers to this room 

or this table. I must say, looking out at you, I was looking at you 

and remarking that none of you seem to have changed. And I’m not 

sure if you think that, but certainly from this side of the dais, 

whatever you’re imbibing down there in Texas, California, and elsewhere, seems to sit well. 

Mr. Secretary Baker, do you want to lead off. 

STATEMENT OF HON. JAMES A. BAKER, FORMER SECRETARY 

OF STATE, HOUSTON, TX, ACCOMPANIED BY HON. LEE H. 

HAMILTON, PRESIDENT AND DIRECTOR, WOODROW WILSON 

INTERNATIONAL CENTER, WASHINGTON, DC 

Mr. BAKER. Mr. Chairman, thank you very much. 

The CHAIRMAN. Thank you. 

5 

Mr. BAKER. We are very appreciative of the committee entertaining this hearing today. 

The CHAIRMAN. Your microphone? Could you just press the button? 

Mr. BAKER. First, we thank you for holding this hearing. We 

thank Ranking Member Lugar for holding this hearing, members 

of the committee. It really is a privilege and an honor for us to be 

back in this room and to be before you. 

As you have quite accurately pointed out, we’re here to discuss 

the report of the National War Powers Commission, which Secretary Christopher and I cochaired, and on which your former congressional colleague Lee Hamilton served so very ably as a valuable member. 

Let me, if I might, start with a little background on the Commission and the problem that you have quite accurately pointed out 

that it deals with, and then Secretary Christopher will outline our 

proposed new statute. 

Two years or so ago, Chris and I were approached by the Miller 

Center at the University of Virginia to cochair an independent bipartisan commission to consider this issue that has bedeviled the 

legal experts and government officials since the Constitution was 

framed—the question of how our Nation makes the decision to go 

to war. Of course, we all know the Constitution gives the President 

the powers of Commander in Chief, and it gives the Congress the 

power of the purse, but also specifically the power to declare war. 

History, though, indicates that Presidents and Congresses have 

often disagreed about the scope and extent of their respective roles 

in the decision to go to war. And the Supreme Court has consistently shied away from settling the constitutional issue. 

So, it was evident to us after a few meetings of our Commission 

that what we really needed to try and come up with was a pragmatic and practical solution to this conundrum. As we put together 

the Commission, it was important, we thought, that we have a very 

wide range of perspectives and voices, both political and from a 

policy standpoint. And so, our Commission includes legal experts, 

former congressional staffers, former White House staffers, and 

former military leaders. The 12-member Commission, if you look 

on—I think you all have a copy of our report—at the names on the 

front page there, the 12-member Commission is equal parts Democrats and Republicans. 

After 14 months of study, we concluded, as you stated, Mr. 

Chairman, that the central law governing this critical decision— 

that is, the War Powers Resolution of 1973, which was passed over 

a Presidential veto—is ineffective and that it really should be 

replaced with a better law. It should be repealed and replaced with 

a better law. 

The 1973 resolution’s greatest fault, I suppose, is that most legal 

experts will tell you that it is unconstitutional, although I’m quick 

to add that the Supreme Court has never expressly ruled on that 

point. 

We happen to believe that the rule of law, which is, of course, 

a centerpiece of our American democracy, is undermined and it is 

damaged when the main statute in this vital policy area is regularly questioned or ignored. 

6 

The resolution has other problems. It calls for the President to 

file reports of armed conflicts, and then it uses these filings to trigger an obligation for the President to remove troops within 50— 

within, sorry, 60 or 90 days if Congress has not affirmatively 

approved the military action. This, of course, purports to allow 

Congress to halt military campaigns simply by inaction. Unsurprisingly, no President, Democrat or Republican, has ever filed reports 

in a way that would trigger the obligation to withdraw forces. As 

a result, the 1973 statute has been honored more in the breach 

than by its observance. 

Recognizing this, others have suggested amending or replacing 

the flawed law, but no such proposal has ever gotten very far, typically because most of them have sided too heavily with either the 

President or the Congress. 

A common theme, however, in all of these proposals and that 

runs through them, the importance of meaningful consultation— 

meaningful consultation—between the President and the Congress 

before the Nation is committed to war. 

Our proposed statute would do exactly that, promote meaningful 

discussion between the President and Congress when America’s 

sons and daughters are to be sent into harm’s way, but it expressly 

does so, Mr. Chairman, in a way that does not limit or prejudice 

either the executive or the legislative branches’ rights or ability to 

assert their respective constitutional war powers. Neither branch is 

prejudiced by what we are proposing. And, in fact, we think that 

both branches and the American people will benefit from it. 

Now, before I turn the microphone over to Secretary Christopher, 

let me first say how rewarding it has been to work with this fine 

gentleman and this able statesman and this dedicated public servant. It has, of course, been equally rewarding to once again be 

working with my former cochairman on the Iraq Study Group, Lee 

Hamilton, and your former colleague up here in the Congress. 

So, Chris, you want to pick up from there? 

[The prepared statement of Mr. Baker follows:] 

PREPARED STATEMENT OF JAMES A. BAKER III, FORMER SECRETARY OF STATE, 

HOUSTON, TX 

Chairman Kerry, Ranking Member Lugar, members of the committee, it is an 

honor to be with you today. 

We are here to discuss the report of the National War Powers Commission, which 

Chris and I cochaired and on which your former congressional colleague, Lee Hamilton, served as a very valuable member. 

Let me start with background on the Commission and the problem it dealt with. 

Secretary Christopher will then outline our proposed new law. 

Two years ago, Chris and I were approached by the Miller Center at the University of Virginia to cochair an independent bipartisan commission to consider an 

issue that has bedeviled legal experts and government officials since the Constitution was framed—the question of how our Nation makes the decision to go to war. 

Our Constitution gives the President the powers of Commander and Chief. The 

Congress has, of course, the power of the purse and the power to declare war. 

But history indicates that Presidents and Congresses have often disagreed about 

their respective roles in the decision to go to war. And the Supreme Court has shied 

away from settling the constitutional issue. 

It was evident that we needed a practical solution to this conundrum. 

As we put together the Commission, it was important that we have a wide range 

of perspectives and voices. And so our Commission includes legal experts, former 

congressional members, former White House staffers and former military leaders. 

The 12-member Commission is equal parts Democrats and Republicans. 

7 

After 14 months of study, we concluded that the central law governing this critical 

decision, the War Powers Resolution of 1973, is ineffective, and should be repealed 

and replaced with better law. 

The 1973 resolution’s greatest fault is that most legal experts consider it unconstitutional, although the Supreme Court has never ruled on it. We believe that the 

rule of law, a centerpiece of American democracy, is undermined and damaged when 

the main statute in this vital policy area is regularly questioned or ignored. 

The resolution has other problems. It calls for the President to file reports of 

armed conflicts and then uses these filings to trigger an obligation for the President 

to remove troops within 60 or 90 days if Congress has not affirmatively approved 

the military action. This purports to allow Congress to halt military campaigns by 

inaction. 

Unsurprisingly, no President—Democrat or Republican—has filed reports in a 

way that would trigger the obligation to withdraw. As a result, the 1973 statute has 

been honored more in the breach than by observance. 

Recognizing this, others have suggested amending or replacing the flawed law. 

But no such proposal has gotten very far, typically because most of them have sided 

too heavily with either the President or Congress. 

A common theme, however, runs through all of these efforts: The importance of 

meaningful consultation between the President and Congress before the Nation is 

committed to war. 

Our proposed statute would do exactly that—promote meaningful discussion 

between the President and Congress when America’s sons and daughters are to be 

sent into harm’s way. 

But it expressly does so in a way that does not limit or prejudice either the executive or legislative branches’ rights or ability to assert their respective constitutional 

war powers. Neither branch is prejudiced by what we are proposing. 

And in fact, we think both branches and the American people will benefit from 

it. 

Before I turn the microphone over the Secretary Christopher, let me first say how 

rewarding it has been to work with this fine gentleman, able statesman, and dedicated public servant. 

STATEMENT OF HON. WARREN M. CHRISTOPHER, FORMER 

SECRETARY OF STATE, LOS ANGELES, CA 

Mr. CHRISTOPHER. Thank you very much, Mr. Chairman, ranking 

member, members of the committee. 

My testimony will follow up briefly on Secretary Baker’s statement. I appreciate those kind things that Secretary Baker had to 

say about me. Without going on about it, let me just say it’s a lot 

more pleasant working with Secretary Baker than it was working 

against him, and I’ve had both experiences. 

The statute that we propose is really quite straightforward. It 

establishes a joint bipartisan congressional consultation committee 

consisting of the leaders of the House and the Senate and the 

chairs of the relevant committees—including this committee, Intelligence, Armed Forces. 

Under the proposed statute, the committee is provided with a 

permanent professional staff and access to relevant intelligence 

information. This is a new provision, and, I think, one that’s quite 

salutary. 

The statute requires that the President consult with this committee before deploying U.S. troops into ‘‘any significant armed conflict,’’ which is defined as combat operations lasting, or expected to 

last, more than a week. Now, for purposes of this statute, ‘‘consultation’’ means providing an opportunity for a timely exchange of 

views, not just notification. 

Within 30 days after the armed conflict begins, Congress is required to vote up or down on a Resolution of Approval. If the Resolution of Approval is defeated, any Senator or Representative may 

8 

file a Resolution of Disapproval. A Resolution of Disapproval would 

have the force of law, of course, only if it’s presented to the President and signed by him, or if it’s passed over the President’s veto. 

However, if a Resolution of Disapproval does not survive the veto, 

Congress can express its opposition through internal rules. 

Mr. Chairman, I recognize that many of the advocates of congressional power argue that Article I, Section 8 of the Constitution puts 

the decision to go to war exclusively in the hands of Congress by 

giving Congress the power to declare war. On the other hand, opponents of the Presidential authority point to the fact that the President is the Commander in Chief under the Constitution. They say 

that the Framers wanted to put the authority to make war in the 

hands of the Government official who had the most information 

and the ability to execute. 

Although both sides of this longstanding argument have good 

points to make, I would just make three points about these arguments. 

First, no consensus has emerged from this debate over the last 

200 years. Nobody has won this longstanding argument. 

Second, I think it’s become fairly clear that only a constitutional 

amendment or a decisive Supreme Court opinion is likely to resolve 

this debate, and neither of these is likely to be forthcoming anytime soon. The courts have turned down war powers cases filed by 

more than 100 Members of Congress, either on the grounds that 

they are political questions or that the plaintiffs in those actions 

lacked standing to sue. 

Third, whatever our Commission might have felt about this 

debate—and we discussed it for a long time, as Secretary Baker 

said—we recognize that we could not resolve this longstanding 

issue. And the last thing we wanted to do as a commission was to 

file yet another report on who is right or wrong, and have it gather 

dust on the library shelves. 

Therefore, in drafting this statute, our Commission decided deliberately not to try to resolve this longstanding debate. Indeed, our 

proposed statute says that neither branch, by supporting or complying with this act, shall in any way limit or prejudice its right 

or ability to assert its constitutional war powers. 

Instead of trying to call balls or strikes, we unanimously agree 

that any legislative reform must focus on practical steps to ensure 

that the President and the Congress consult in a meaningful way 

before going to war. We believe that, among all the various alternatives—and we certainly talked about a lot of them—this proposed statute best ensures consultation. We believe it’s a significant improvement over the 1973 resolution, and it’s good for the 

President, the Congress, and for the American people. 

Now, from the standpoint of the Congress, the statute gives it a 

much more significant seat at the table when our Nation is deciding whether or not to go to war, provides not only a seat at the 

table, but it gives a permanent staff to the committee and access 

to all relevant intelligence information. It requires real consultation, not just lipservice. 

Now, in my experience, the seasoned views of the congressional 

leaders constitute a very vital resource for the President in his 

decisionmaking process. Indeed, it’s very healthy, I think, for the 

9 

President to hear the independent opinions of people who don’t 

work for the President. I know how confining it is when the President only talks to people who happen to work for him. 

For the President, of course, this law that we’re proposing 

eliminates a law that every President since 1973 has found to be 

unconstitutional and has largely ignored. The statute provides a 

mechanism for consultation with the Congress, and it identifies a 

leadership group with whom the President should consult. 

I know, down in the White House, they have often had a question as to who the President should consult with. Sometimes I 

think the President has consulted with those who are most likely 

to agree with him, and we think that’s probably not a healthy situation. 

From the standpoint of the American people, the statute will 

really enhance the prospect of consultation between Congress and 

the President on matters of war, and make it a regular thing. This 

is something that public opinion polls have consistently indicated, 

for more than 70 years, the American people have wanted. We 

really believe the American people deserve something better than 

a law that’s ineffective and has been largely ignored for 70 years. 

Mr. Chairman, Mr. Ranking Member, and Senators, thank you 

very much for hearing us, and we look forward to trying to respond 

to any questions that you may have. 

[The prepared statement of Mr. Christopher follows:] 

PREPARED STATEMENT OF WARREN CHRISTOPHER, FORMER SECRETARY OF STATE, 

LOS ANGELES, CA 

Mr. Chairman, Ranking Member, and members of the committee, my testimony 

will follow up briefly on Secretary Baker’s statement. 

Without going on about it, let me just say that it is a lot more fun working with 

Secretary Baker than working against him. He is an extraordinary American leader. 

The statute we propose is straight forward. It establishes a bipartisan Joint Congressional Consultation Committee consisting of the leaders of the House and the 

Senate, and the chairs of the key committees. Under the proposed statute, the committee is provided with a permanent professional staff and access to relevant intelligence information. 

The statute requires the President to consult with the Congressional Consultation 

Committee before deploying U.S. troops into any significant armed conflict, which 

is defined as combat operations lasting or expected to last more than a week. If the 

need for secrecy precludes prior consultation, the President is required to consult 

with the committee within 3 days after the conflict begins. For purposes of the statute, consulting means providing an opportunity for a timely exchange of views, and 

not mere notification. 

Within 30 days after the armed conflict begins, Congress is required to vote up 

or down on a resolution of approval. If the resolution of approval is defeated, any 

Senator or Representative may file a resolution of disapproval. A resolution of disapproval will have the force of law only if it is passed by both Houses and signed 

by the President, or if the President’s veto is overridden. However, if the resolution 

of disapproval has not survived the President’s veto, Congress can express its opposition through its internal rules. 

Mr. Chairman, I recognize that many advocates of congressional power argue that 

article 1, section 8 of the Constitution puts the decision to go to war exclusively or 

primarily in the hands of Congress by giving Congress the power to declare war. 

They say that by this provision, the Framers of the Constitution stripped the executive branch of the power to commence war that the English King enjoyed. 

On the other hand, proponents of Presidential authority point to the Executive 

power and Commander in Chief clauses in the Constitution. They say that the 

Framers wanted to put the authority to make war in the hands of the government 

official who had the most information and the ability to execute; and they point to 

recent history as proof of the President’s predominance. 

10 

A whole forest of trees has been felled to publish writings on this debate. 

Although both sides make compelling arguments, only three propositions hold true: 

(1) No consensus has emerged from the debate in 200 years; no one has ‘‘won’’ 

the argument. 

(2) Only a constitutional amendment or decisive Supreme Court opinion will 

resolve the debate; neither is likely forthcoming anytime soon, and courts have 

turned down war powers cases filed by as many as 100 Members of Congress. 

(3) Despite what I or my fellow commission members may feel about the 

debate, we cannot resolve it, and the last thing we wanted to do was offer yet 

another opinion on who was right or wrong. 

Thus, in drafting the statute before you, our Commission deliberately decided not 

to try to resolve the debate. Indeed, our proposed statute says ‘‘neither branch by 

supporting or complying with this act shall in any way limit or prejudice its right 

or ability to assert its constitutional war powers, or its right or ability to question 

or challenge the constitutional war powers of the other branch.’’ 

Instead of trying to call balls or strikes, we unanimously agreed that any legislative reform must focus on practical steps to insure that the President and Congress 

consult in a meaningful way on the decision to go to war. We believe that, among 

all available, practical alternatives, the proposed statute best accomplishes that 

result, is a significant improvement over the 1973 resolution, and is good for the 

Congress, the President, and the American people. 

From the standpoint of Congress, the statute gives a more significant seat at the 

table when our Nation is deciding whether or not to go to war. It provides not only 

a seat at the table, but a permanent staff and access to all relevant intelligence information. It calls for genuine consultation, not mere lip service. The seasoned views 

of congressional leaders constitute a vital resource for the President in his decisionmaking process. It is very healthy for the President to hear the independent opinions of people who don’t work for him. 

For the President, the proposal eliminates a law that every President since 1973 

has regarded as unconstitutional. It provides a mechanism for his consultation with 

the Congress, and it identifies the leadership group with whom he should consult. 

From the standpoint of the American people, this statute will enhance the prospect of cooperation between the Congress and the President on matters of war. This 

is something that public opinion polls have consistently indicated Americans have 

wanted for the past 70 years. 

The American people deserve something better than a law that is ineffective and 

has been largely ignored for 70 years. The new statute achieves that result. 

Mr. Chairman, we have sought to set a careful balance between the Congress and 

the President on this matter of grave importance. Neither the strongest advocates 

of congressional power nor those of Presidential power are likely to be completely 

happy with our proposal, but we think that this is a reflection of the balance that 

we have sought to strike. 

The CHAIRMAN. Thank you very much, Mr. Secretary. 

Mr. Chairman, I understand you’re not going to make a statement, is that correct? 

Mr. HAMILTON. No. 

The CHAIRMAN. OK, but submit to questions? 

Well, let me thank each of you for this. Let me emphasize, if I 

can, how important this is. I think my colleagues here understand 

that, while the Nation’s attention is not focused on this issue today, 

and while the Klieg lights and the sort of hot breath of the media 

is not intense here at this moment, everybody in this room, particularly those at this table, understand the implications and how important it is to be here now, trying to figure out the best path 

through this, rather than in the middle of the crisis, when all the 

attention is focused on it, but when you have the least ability to 

be able to do something about it. 

So, this is the moment, and I want to thank each of the participants. I also want to thank Governor Baliles and the Miller Center 

for their support of this project. It’s a very important contribution 

to our Nation’s discourse. And, without objection, I intend to put 

the entire War Powers Commission Report into the record, because 

11 

I think this is a record that’s going to be studied and analyzed as 

we go forward, and we want to lay the predicate for our thinking 

and for whatever legal proceeding might one day occur as a consequence of this. So, we are laying a record with respect to all of 

that at this time. 

[EDITOR’S NOTE.—The War Powers Commission Report can be 

found in the Appendix on page 33 at the end of this hearing.] 

The CHAIRMAN. In your proposal, you set out types of operations 

that are specifically excluded; three, in particular: Actions taken to 

repel attacks, or prevent imminent attacks on the United States; 

two, limited acts of reprisal against terrorists or states that sponsor terrorism; and three, missions to protect or rescue American 

citizens and military or diplomatic personnel. 

Now, many of our operations today—military operations—are 

focused on our counterterrorism efforts, and I’d just like to try to 

clarify, if we can, a little bit, sort of, what your thinking is here. 

Under what circumstance do you envision these exceptions allowing a President to order military strikes against state sponsors of 

terrorism without any consultation with Congress? Do you envision 

that? For instance, there are certain states engaged in proliferation 

activities today; one might envision some sort of counterterrorism 

preemptive effort with respect to them, and I wonder if you’d comment on that. 

Mr. BAKER. Thank you, Mr. Chairman. 

The exclusions or exceptions that are listed—and you noted three 

of them; there are some others—operate—the President would be 

free to undertake those types of actions without prior consultation, 

without satisfying the requirements of our proposed statute. But, 

once those actions ripened into a significant armed conflict—that 

is, once those actions extended for more than 7 days—the statute 

would be triggered, there would have to be consultations and then 

continuing consultations, as the statute requires. 

The CHAIRMAN. So, is ‘‘significant armed conflict’’ defined by the 

amount of time or by the size and scope of the operation? 

Mr. BAKER. It’s defined by the—it requires combat operations, 

and it requires the expiration of 7 days. So, I think I would say 

the amount of time. But, it is not just 7 days during which combat 

operations are taking place. If the President knows, or has reason 

to believe, that a particular operation will last more than 7 days, 

the statute is triggered. Now, that’s difficult, of course, because you 

can’t always get inside a President’s head. But, it’s more, really, 

the time, but there is a requirement that the operations be combat 

operations as opposed to just preparations therefore. 

Mr. HAMILTON. Mr. Chairman—— 

Mr. CHAIRMAN. Lee. 

Mr. HAMILTON. Mr. Chairman, you want to contrast that with 

the War Powers Resolution, which uses the term ‘‘hostilities’’ and 

is very inadequately defined. Definitions, of course, are extremely 

difficult in this area, and we didn’t want to overdefine terms. We 

think we’ve struck the right balance here, but obviously that’s our 

judgment. 

The CHAIRMAN. Can you—and you are correct, Mr. Secretary, I— 

those are several—those are three of a number of exclusions, and 

12 

I don’t want to make it sound like those were exclusive. But, the 

President has to consult with the Joint Committee prior to the conflict unless there’s a need for secrecy or other emergent circumstances precluding that. Can you give us a sense of what the—what 

would qualify as ‘‘emergent circumstances’’ that would relieve the 

President of the duty for predeployment consultation? 

Mr. BAKER. Well, I think the ranking member gave us a good 

example of one, the air strike on Libya, where secrecy was critical. 

There would be others—that’s a separate provision, Mr. Chairman, 

of course, from the exclusion provision and exemption provision. 

There is one separate provision—I think it’s 4(c)—that says, if 

there is a need for secrecy to protect the lives, for instance, of 

American servicemen, then the President can begin his consultation 3 days after ordering or beginning the operation. That’s a separate provision, of course. 

Under the ones that you initially read off, the general exclusions 

and exemptions, those are—there would be no requirement to consult there before those actions were undertaken, but, once they had 

gone on for 7 days, then there would be an obligation to consult. 

A good example might be, from your experience, training operations, perhaps, in Vietnam that ripened into something a heck of 

a lot more than training operations. If those training operations 

ripened into combat operations that extended for more than 7 days, 

the statute would be triggered. 

The CHAIRMAN. So, does the consultation component of this 

depend on the good faith of the President, or is there any kind of 

guillotine, is there any sort of—— 

Mr. BAKER. To some extent, when you’re talking about requiring 

more meaningful consultation, there has to be good faith, and it 

depends upon good faith, I think, on the part of the President, but 

also on the part of the Congress, the people being consulted. 

I would make the point, Senator Kerry, that many people would 

argue that the President could do, anyway, some of the things that 

are listed in here as exemptions; that is, take actions to protect 

American possessions or embassies or citizens abroad. I think a lot 

of people would argue whether the President has that right anyway. Under our statute, he would have that right, but he—but, it 

wouldn’t extend ad infinitum. He could—if he took action to protect 

an embassy or American citizen abroad, and it ripened into a combat event that lasted more than 7 days, then the statute’s triggered 

and there would have to be ongoing consultation. 

Mr. HAMILTON. And the important thing there is that the President must consult in that situation. He doesn’t have an option. If 

he’s going to commit troops for a significant armed conflict, he shall 

consult, which is—— 

Mr. BAKER. But, not obtain approval. No requirement in here for 

approval, but there’s a mandatory requirement of consultation. 

The CHAIRMAN. Right, but there is, then, a mandatory requirement for a vote within 30 days—— 

Mr. BAKER. That’s correct. 

Mr. HAMILTON. Correct. 

The CHAIRMAN. So you are triggering a requirement for Congress 

to engage, which has been significantly absent with respect to war 

powers. I mean, you know, it seems to me that the constitutional 

13 

mandate, ‘‘Congress shall declare war,’’ does not require Congress 

to declare war. 

Mr. BAKER. No. 

The CHAIRMAN. It simply gives them the power to declare war, 

if they choose to do so. Correct? 

Mr. BAKER. That’s correct. 

The CHAIRMAN. And, in effect, Congress has complicated this significantly, not the least of which, for instance, in the longest war 

in our history, Vietnam, where they refused to ever step up and 

either do the purse or make the declaration. 

Mr. BAKER. That’s correct, sir. And we think, in something as important and serious as this, and particularly given the fact that the 

polls over the last 50-plus years have showed that the American 

people really want both the Congress and the President involved 

when the Nation sends its young men and women into battle, we 

don’t think it’s unreasonable to say Congress, after 30 days, should 

take a position on the issue. 

Now, if a vote—if a Resolution of Approval does not pass, our 

statute provides that any Member of the House or Senate could 

introduce a Resolution of Disapproval. If that Resolution of Disapproval passes, it would not have the force of law unless the constitutional requirement of the presentment clause was met and it 

was presented to the President for his signature or veto. If he 

vetoed it and Congress overrode the veto, then, of course, you 

would have an actionable event of disapproval. 

The CHAIRMAN. All of which, in total, I believe, actually—and 

this is what I think is very significant about your proposal and one 

of the reasons why I think it threads the needle very skillfully— 

is that you actually wind up simultaneously affording the President 

the discretion, as Commander in Chief, and the ability to be able 

to make an emergency decision to protect the country, but you also 

wind up empowering Congress. And, in fact, subtly, or perhaps not 

so subtly, asking Congress to do its duty. I think that’s not insignificant at all, and I think you’ve found a very skillful way of balancing those without even resolving the other issues that have 

previously been so critical, in terms of the larger constitutional 

authority, one way or the other. 

Mr. BAKER. Thank you, sir. 

The CHAIRMAN. So, I—— 

Mr. BAKER. May I just make one final—— 

The CHAIRMAN. Absolutely. 

Mr. BAKER. [continuing]. One other statement? I don’t mean to 

be doing all the talking, here. 

We think, as Chairman Hamilton said, I think, over on the 

House side, this proposal presents an outstanding opportunity for 

bipartisanship. We talk a lot about bipartisanship these days. 

Here’s a really good example of an opportunity to achieve that. 

The disagreements in this area have been disagreements 

between the branches, not so much disagreements between the parties. And this is something that is—it’s practical, it preserves the 

ability of each branch to continue to make their constitutional 

arguments, but gives us a pragmatic and practical way of going forward, and it should not be a matter of partisan political difference. 

The CHAIRMAN. I couldn’t agree more. 

14 

Senator Lugar. 

Senator LUGAR. Well, thank you, Mr. Chairman. 

In my opening comments, I mentioned this date of April 14, 

1986, because it framed several of the issues that we’re discussing 

today. It was a pragmatic judgment by President Reagan to call 

this group together, which looks very much like the sort of group 

that you’re suggesting. They—I think it encompassed the chairmen 

and ranking members of Foreign Relations and Intelligence, and 

that was—and Armed Services—and that was true of House Members. They may not all have been there. But, I put the thing into 

my statement, because I have a picture of us sitting around the 

table. This is not anecdotal, there’s sort of documentary evidence 

of who was at the meeting. 

And it was a rather awesome experience to hear the President, 

and then he turns to the Secretary of Defense, describing the fact 

that there are aircraft in the air and they are taking action because 

some European countries at the time were making it difficult to fly 

over on a mission of this variety, so it was taking them a while to 

get there, and that’s why the 3-hour lapse. 

And also, it was interesting that there was enough anxiety or difference of opinion that the conversation went on for 21⁄2 hours, during which you have the sense that these planes are approaching. 

I remember coming back to my office and hearing, sort of breaking into the 7 o’clock newscast, the thought that aircraft were 

bombing Libya. And I said, ‘‘Well, that’s right. That’s what’s happened.’’ 

Now, in this particular instance, however, there was this degree 

of consultation and responsibility. None of us knew what Libya 

would do, what kind of retaliation and what the aftereffects might 

be. As it turned out, there are not immediate ones, so the 7-day 

rule, or the 30-day rule, probably would not have kicked in, which 

was sort of a mission-accomplished at that point. 

But, the thing I want to raise is, Libya was a nation-state. The 

attack really was on areas very close to the President—or the 

Great Leader of the country, and, in fact, some of his relatives were 

killed, as I recall, in the process. 

The problems that we have talked about in this committee recently revolve around such thoughts as al-Qaeda might be not only 

in the mountains of Pakistan, but in Somalia or in Yemen or, as 

we have found out in attacks on our embassies before. 

Now, one of the values of this, as I’ve thought through this, is 

that this Joint Committee possibly might meet with some regularity, as opposed to just simply on the occasion of a Libya situation in which the President or those responsible could say, ‘‘Now, 

this is very confidential, but, in fact, a war on terror is being 

fought in several fronts. There’s a conspicuous one out in Afghanistan and Pakistan, and we talk about that every day, because it’s 

very important, but what all of you folks in Congress need to 

understand is that our intelligence services are very good, they’ve 

ferreted out where al-Qaeda may be. These people are fully as 

capable of launching or planning an attack on the United States as 

the people were in camps in Afghanistan earlier. And therefore, 

they might say, ‘‘We’re going to take action,’’ or they might describe 

continuous action they are taking, in which various members of 

15 

al-Qaeda may be losing their lives or losing something in the process. And the ramifications of that are not really clear in the host 

country, which may be a failed state, This doesn’t negate the fact 

we may deal with nation-state war in the future, but many would 

describe the more probable course in the war on terror as dealing 

with, if not al-Qaeda, other cells that are a threat to ourselves, our 

allies, to world stability, a much more difficult thing, perhaps, to 

define. And this is why I find attractive the idea of this committee. 

Now, the dilemma, I think, for Chairman Kerry and—as chairman of this committee, for example, would be, well, this new committee has staff, and it has some jurisdiction on some of the most 

difficult issues. How does that work out with the staff of our committee, bipartisan staff that works all the time on these issues, or 

Armed Services or Intelligence? You know, you may say, ‘‘Well, 

that’s for you folks to work out. You have—you’re going to be serving as chairman or ranking member on both of these committees, 

and you already have certain staff members on your own staff, 

quite apart from the committee, and so forth.’’ I’m just curious, did 

you have any discussion in your group about, as a practical matter, 

how this works out with regard to committee staff, who has jurisdiction, where—which committee do we really discuss this? Do we 

take it up in the joint meetings, regularly with the President, or 

so forth, or—is our responsibility really to our entire committee, to 

a certain degree of public hearing, so that we’re all up to date on 

this? Do you have any feeling about these internal workings of how 

this might work? 

Mr. CHRISTOPHER. Senator Lugar, our Commission talked quite 

a lot about the new forms of war and nonstate actors. We had a 

number of witnesses—I think almost 50 witnesses—among them, 

Dean Harold Koh, who I understand you’ll be hearing this afternoon in his nomination. And we understood that, and one of the 

reasons we put in section 4(a) of the statute was to meet that exact 

problem. We say, ‘‘The President is encouraged to consult regularly 

with the Joint Congressional Consultation Committee regarding 

significant matters of foreign policy and national security.’’ 

So, we certainly don’t mean to preempt the jurisdiction of this 

committee or other committees, but I think this new committee 

would become the major forum for consultation on issues of war 

and peace, and that’s why we have given this committee a separate 

professional staff, an ongoing professional staff that can be very 

useful in the future, as well as access to all relevant intelligence. 

Sometimes, it seemed to me that Congress did not have as fully 

adequate access to information as sometimes they have down in 

the White House. So, I think we understood that very well, and we 

understood that these committees would continue to have their 

jurisdiction, but a major jurisdiction would be in this new joint 

committee, which had a staff that would be working on it on a 

rather continuous basis. 

Senator LUGAR. Well, I appreciate that answer. I think—maybe 

they’re just my own personal reflections, but as our Nation 

approached the current war with Iraq, I think the feeling that I 

had during the summer vacation, as I heard statements by Vice 

President Cheney or others, was that we might be going to war 

before we got back in the fall. Now, I was reassured when we had 

16 

a meeting with President Bush around the table with many of the 

people who will be in this committee that you’ve suggested, and he 

said, ‘‘We’re going to the United Nations. Secretary Powell is going 

to testify.’’ And so, that was somewhat reassuring we were not 

going to war, since we were going to the United Nations. But, then 

things deteriorated. And before long there were at least thoughts 

that we were going to war sooner than later, because the weather 

in Iraq gets warmer, and therefore, if you were going to do something, it would be better to do it in the spring than in the summer, 

if you were to be effective with a strike of that sort. 

Now, this sort of came through the rumor mill. There was no 

committee in which some of us might have asked the President, ‘‘Is 

that true? Is the fact—in a military situation, that this is going to 

have to work out at this particular point?’’ I just reflect on this 

anecdotally, because these are very large decisions that finally 

involved us for a long time, and the need to have this consultation 

and some access to the President and the Secretaries, and what 

have you, for many of us, we feel is very important, our responsibilities. 

But, I ask the question, just in behalf of our committees, as they 

are constituted, while this committee of leaders is meeting, that— 

after all, we were also trying to draw together, ultimately, if we 

were going to have votes on this subject, votes in the committee, 

votes in the Congress, relevant debate of all of us, as well as those 

sitting around the table—and I’m, in my own mind’s eye, trying to 

think how all of this progresses. 

Mr. BAKER. Well, Senator, if I might chime in here, Section 5(b), 

if you’ll take a look at 5(b) of our proposed statute, says that it is 

our view that the committees of jurisdiction for the Resolution of 

Approval or Disapproval should be the Senate Foreign Relations 

Committee in the Senate and the House Foreign Affairs Committee 

in the House. So, we suggest the lead role for these two committees. 

Senator LUGAR. They’re mentioned specifically in this section. 

Mr. BAKER. They are mentioned specifically in 5(b), and they 

are—and it is our recommendation that they have the lead role. 

Mr. HAMILTON. Senator Lugar—— 

Mr. BAKER. That doesn’t answer all of your questions, about—— 

Senator LUGAR. No, but that’s—— 

Mr. BAKER. [continuing]. How do you—— 

Senator LUGAR. [continuing]. Explicitly you’ve tried to meet that. 

Mr. BAKER. Yes, sir. Yes, sir. 

Mr. HAMILTON. Senator Lugar, my impression is that the decision to go to war involves a lot more than foreign policy; it involves 

intelligence, and it involves, certainly, the Armed Forces. And you 

have enormous responsibilities in this committee, extending far 

beyond the questions of war and peace. Your committee, this committee, would not in any way be diminished by this proposal. But, 

what we try to do is to put in the room with the President the key 

players in all of the areas that would be involved in making a decision to go to war—Intelligence, Armed Services, Foreign Relations, 

Foreign Affairs in the House—and, of course, the ranking member 

and the chairmen of these key committees would serve on the consultative committee, so there would be good coordination. 

17 

This is, as I think you said in your statement, the most important decision government makes, whether or not you go to war. 

And you want to get it right, as best you can. And I think you have 

a better chance of getting it right if you have all perspectives 

brought to bear and available to the President for consultation. 

Senator LUGAR. Thank you very much. 

The CHAIRMAN. If I could just follow up on that quickly, and I 

apologize, Senator Kaufman, but—3(c) ‘‘says the Joint Congressional Consultation Committee consists of.’’ You’ve referred to it 

prior to that, but this is where you create it, so to speak. And it 

simply says who it will be made up of. And then, the chairmanship 

and the vice-chairmanship will rotate. 

My question is, Would it be—I interpret it as a purely consultative committee for the sole purpose of—not with an ongoing 

standing obligation under the rules of the Senate; in other words, 

requiring staff and an enormous amount of work. Now, maybe you 

interpret that differently, but would it be better to clarify that in 

some way, that its purpose will be solely consultative with respect 

to the issue of armed conflict, without staff? 

Mr. BAKER. Well, the Congress, of course, could do that. 

The CHAIRMAN. I’m just wondering what your thought is on that. 

It strikes me that that may be a way of dealing with some of Senator Lugar’s concerns, which I think are legitimate. 

Mr. BAKER. That would be, I would think, Mr. Chairman, subject 

to the rules of the House and of the Senate; and whatever those— 

whatever the wishes of the two bodies were would be—would be, 

of course, I’m sure, embodied in the final legislation. It was not our 

intent to sit up here and write the—— 

The CHAIRMAN. Write all the details. 

Mr. BAKER. [continuing]. Details of those rules. But, we did expressly think it was worthwhile recommending that the leadership 

in this area remain with House Foreign Affairs and Senate Foreign 

Relations. 

Mr. HAMILTON. I think the chairman—Senator Kerry, you’ve got 

it exactly right. This is not a legislative committee. You’re not authorizing money. You are consulting with the President—that’s 

your sole purpose—on the question of going to war. And so, it’s a 

very limited purpose; obviously hugely important, but very limited. 

The CHAIRMAN. Well, we need to clarify that, because paragraph 

4(h) actually gets specific about staff and what we might or might 

not do. So, I think this is worthy—this is exactly why we have the 

hearing, and it’s a good thing to explore. 

Senator Kaufman. 

Senator KAUFMAN. Thank you, Mr. Chairman. I think this— 

there is—as the panel said, there is no important—more important 

issue facing the Congress than how we deal with going to war, and 

I—having served this place for a long time, it’s the single most difficult decision that a Member of Congress makes, and I’m sure it’s 

the most difficult decision a President makes. 

The War Powers Act. I showed up in the Senate just about the 

same time as the War Powers Act, and it’s been like a rugby football that’s been kicked around for 36 years. And I think that—I 

can’t think of better people to try to get at the heart of this than 

the people on this panel. And we’re very, very fortunate to have 

18 

you here and working on this thing. And I am very much in sympathy with your proposal. I think consultation is a good idea. 

But, if there’s an—if the War Powers Act is a 300-pound gorilla 

in the room, there’s a 1,000-pound gorilla in the room, and that is 

declaration of war, beyond the war powers. So, we decide we have 

the War Powers Act, but at some point the Congress act. And 

clearly we’ve not—we’ve only declared war five times in our history, and the last one was the Second World War. Secretary Christopher, you said there were discussions about war, declaration of 

war, and I just think I would be making a dereliction of duty if I 

didn’t ask the three of you, kind of, your opinion on what we should 

do—how we deal with this declaration-of-war problem, which is— 

we just don’t do it, and we probably should, and I’d just like your 

thoughts. 

Mr. CHRISTOPHER. The Congress has decided, apparently, Senator, to go the route of authorization to conduct military operations, 

and that’s taken the place of a declaration of war, and seem to give 

the President all the authority he feels he needs to go ahead. So, 

the declaration of war may well have fallen into disuse. And 

whether that’s fortunate or unfortunate, I think that’s the reality 

of where we are. 

And so, we’re trying to provide a certainty here that there’s consultation, even if there is not an issue about the declaration of war. 

So, we provide for this consultation whenever there are significant 

military actions contemplated, whenever there is combat action 

lasting longer than 7 days, without regard to whether or not there 

has been a declaration of war or a motion for a declaration of war. 

Mr. BAKER. Congress has, in one way or another, authorized 

every action, I think, Senator Kaufman, in the last 50 years, with 

the exception of Grenada, Panama, and Kosovo, where there was 

not express authorization. 

Senator KAUFMAN. But, are you comfortable with the idea that 

we—I’m not saying we can do—probably need a constitutional 

amendment to change it—that essentially we have this perception 

that we’ve never been—everybody knows we’re at war, but no one 

says we’re at war. Does that bother you, though? I mean, you deal 

with international leaders. Is that a problem? 

Mr. BAKER. Well, I don’t think there is—it was not a problem, 

in terms of the conflicts that I was involved in, certainly not the 

first gulf war. Everybody knew that was a war, including—and all 

the foreign leaders treated it as such when we talked to them 

about it. So, I don’t—I’m not sure—I would imagine that there are 

a lot of—there are a number of other arcane provisions in the Constitution that don’t have ready application today. 

And so, I don’t—I don’t know that a lot is lost. If the Congress 

authorizes the action, in one way or another, is it really magic for 

them to do it by way of a declaration of war? I don’t know. 

Senator KAUFMAN. OK. And I would follow up on the chairmen 

and ranking members. I think the staff question is an interesting 

question. When you have, you know, staff in the Foreign Relations 

Committee, Armed Services Committee, they’re studying this every 

day, they’re up on what’s going on. To have another staff group off 

to the side that then meets, what you’re going to have is a meeting—consultative meeting, the Senators are going to bring their 

19 

own staff from their own committees. It just kind of gets more people in to the room and more people in the decision, which, as you 

have said, is the most important decision you make. 

Mr. BAKER. You know, following up on what Chairman Hamilton 

said, it may be—it may be preferable for the people on the Joint 

Consultative Committee, the chairmen and ranking members of the 

relevant committees and the leadership of the House and Senate, 

to bring their own personal staffs and use them, although what we 

were seeking to provide here is enough support so that the Congress would feel that it has a more equal place at the table. And 

I think at least from my own view—and maybe Secretary Christopher and Chairman Hamilton have a different view—I thought 

there was—that it was primarily oriented toward providing information to that Joint Consultative Committee; intelligence information, particularly. 

Mr. HAMILTON. Senator, to address your previous question, I 

think one of the advantages of the bill that we’re proposing here 

is that it builds into the process broader support for the military 

action. Everybody agrees that the country’s better off, and the 

President is better off, if he has broad support. Today, a President 

can commit military forces, really, without congressional involvement, and usually, of course, the Congress comes along and supports the President, but that’s not always going to be true; it may 

be true most of the time. 

But, what happens here is, the President notifies the Congress. 

The Congress must act. To be blunt about it, in almost every case 

I can imagine, the Congress is going to support the President. It 

may be possible that it would be otherwise, but not likely because 

Presidents are able to carry the country on a national security 

issue, because they’re the only ones that have the voice to reach 

all the people. 

Therefore, one of the things you want to do is to build as broad 

a support base as you possibly can for that action. And I think this 

provides the framework to do it. 

I can well imagine some Members of the House, I’m sure no 

Members of the Senate, would not want to vote on it. But, it’s important, we think, that they do vote on it and that the Congress 

get on record, for the action or against the action, as they choose. 

The result, I think, as a practical matter, will be that a President 

will go into military action—lead the country into military action— 

with much broader support than otherwise might be the case. 

Mr. CHRISTOPHER. Senator, let me follow up with just a thought 

or two on your very thoughtful question. 

It seems to me that the joint committee that we propose is a way 

for the President to talk to all the Members of Congress, not just 

one committee or another committee. It’s a conduit for him to 

speak to all 535 members, which he lacks right now, and that staff 

would enable him—enable this committee to really get to the bottom of the President’s request, and not have the information flow 

be dominated by what’s known in the NSC down at the White 

House. 

Mr. HAMILTON. That’s a very important point. Presidents today 

do not know with whom to consult. Five hundred thirty-five memVerDate Nov 24 2008 14:19 Jan 28, 2010 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 H:\DOCS\WARPOWER.TXT BETTY
20 

bers. They know, of course, a few of them they need to consult 

with. 

Here, you provide a clear group of people with whom the President should consult, built into law, and a Member of the House or 

the Member of the Senate cannot complain, as they usually do, ‘‘I 

wasn’t consulted.’’ They have voted for a mechanism for the President to consult with the Congress. And they can’t complain, then, 

if the mechanism is followed. 

I think it’s very important for a President to be able to know, 

‘‘With whom do I consult on this question?’’—and not just do it hit 

or miss because Senator Kerry or Senator Lugar are key players. 

There are a lot of key players in the Congress. And this provides 

a President with a focal point for consultation. 

Senator KAUFMAN. I think it’s an excellent proposal, and I think 

it’s been interesting to sit here and watch, in the absence of real 

affirmation of the War Powers Act or the declaration of war, there’s 

a kind of a kabuki theater that goes on, where the President, 

before they go to war or goes into action, says, ‘‘I have the power. 

I can do this. I don’t need you in the Congress to do it.’’ But, in 

every single case, what have they done? They’ve come to the Congress, because of the point that they need that broad support. So, 

the system works, and I think it works well. We do—but, I couldn’t 

agree with you more, I think knowing who to consult with, people 

understanding what their responsibilities are, is always good, no 

matter what kind of organization you have. So, I think this is especially good, and I think that what you’ve come up with—I think the 

staff thing is something that we just—you know, we should take 

a hard look at. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Kaufman. 

Senator Corker. 

Senator CORKER. I want to thank all of you for long years of public service and continuing to help us through these things, and certainly for your help in this particular issue. So, I have some—just 

some specific questions. 

In the event of the actionable event of disapproval, where the 

Congress says, ‘‘We disapprove of war taking place,’’ and the President—and even in the case—and I know this is very unlikely, 

because, Chairman Hamilton—the fact is that Congress generally 

does support the President in matters of this type. Sometimes they 

go on longer, and sometimes they lose that support. But, since 

we’re not wrestling with the constitutional issue of who really has 

the authority, there still—is there still a remainder conflict there 

if the President decides, ‘‘Look, I’ve declared war, and whether 

Congress overrides me with more than 67 percent,’’ or whatever— 

we still have that conflict, constitutionally, do we not, with this 

solution? 

Mr. BAKER. You’re always going to have that, Senator. Unless 

you get a constitutional amendment or unless you get the Supreme 

Court to rule on the matter, there’s no other way to resolve the 

constitutional problem. But, it would be—— 

Senator CORKER. And—— 

Mr. BAKER. [continuing]. Very difficult for a President, if the 

Congress voted a Resolution of Disapproval, he vetoed it, and they 

21 

passed it over his veto, it would be extraordinarily difficult for him 

to continue to support the military action politically within the 

country. When you lose—and, of course, the will of the American 

people is the final arbiter of our foreign policy in a democracy such 

as we enjoy. Once he loses that, he’s going to be in trouble. So, it’s 

the political imperative that would then kick in, but you will not 

have a resolution, you’re quite right, of the underlying constitutional problem. 

Senator CORKER. So, what we’re really creating here is sort of 

the code of conduct that will exist between Congress and the President. It really is not going to have the effect of law. Is that correct? 

Mr. BAKER. Oh, it would have the effect of law, I think. That’s 

what we have in mind. It would be a statute that would be on the 

books. It could be challenged, I suppose, constitutionally, ex post 

facto, by either the—somebody in the Congress, but, you know, 

we’ve had many cases where Members of Congress have filed suit 

against the President, and the courts won’t entertain the suit. Or, 

it could be challenged by the President, saying, ‘‘I don’t care whether they overrode my veto of the Resolution of Disapproval. I’m 

going forward anyway.’’ Very risky business for the President. 

Senator CORKER. So, let’s—you want to say something? 

Mr. CHRISTOPHER. I just wanted to say that if there was a Resolution of Disapproval passed by both Houses, and even if the President was able to avoid a veto and not have it overridden, nevertheless, the Congress could then, through its internal rules, have their 

will expressed. For example, Congress, I suppose, could have a rule 

that if there was a Resolution of Disapproval approved in both 

Houses, that thereafter there could be a point of order if there was 

any military appropriation. Congress has a great deal of power, of 

course, in the fiscal sense, so they can express their will. If there 

was a Resolution of Disapproval that either the President signed 

or was passed over his veto, that would be true even to a greater 

degree and Congress could express its will through failure to make 

appropriations. 

Senator CORKER. So, we’re sitting here today, and as we’re sitting here, there are drones flying over Pakistan. And when the 

intelligence is appropriate and we actually know a target is zeroed 

in on, we’re dropping Hellfire missiles on top of living rooms or 

whatever we might call where folks are occupied today. So, that’s 

happening as we’re sitting here. That’s in the public domain. 

Everybody understands that. So, explain to me exactly, since we 

know that’s ongoing, and it’s been ongoing for a long time, how 

does that fit into this particular scenario that’s been laid out? 

Mr. BAKER. There are a number of exclusions and exemptions, 

Senator Corker. Some of those, the chairman mentioned, that 

might cover the situation you’re talking about, actions taken by a 

President to repel attacks or to prevent imminent attacks on the 

United States, its territorial possessions, its embassies, its consulates, or its Armed Forces abroad; limited action of reprisal 

against terrorists or states that sponsor terrorists; covert operations. Some of this stuff that’s going on perhaps has been authorized as a covert operation. Those are not covered by the statute, 

unless, as I said early on, they ripen into a significant armed conVerDate Nov 24 2008 14:19 Jan 28, 2010 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 H:\DOCS\WARPOWER.TXT BETTY
22 

flict by virtue of having a continuing combat operation for more 

than 7 days. 

Senator CORKER. So, to get back to Senator Lugar’s question 

about Somalia and Yemen and lots of places where, ‘‘al-Qaeda’’ is 

and exists, actions like that, that continue to be surgical in nature, 

that don’t necessarily involve lots of troops, if you will, those types 

of actions can continue ad infinitum without any types of action by 

Congress. 

Mr. BAKER. Well, the only thing that’s required under this statute of a President, to begin with, is consultation. So, no approval 

is necessary. Simply consultation. Those things could continue until 

they would ripen into a significant armed conflict, by virtue of a, 

I think, continuing combat operation for more than 7 days. 

Senator CORKER. So, if we’re moving down the spectrum to that, 

one of the exclusions also is the safety of our troops—— 

Mr. BAKER. Right. 

Senator CORKER. [continuing]. That—so, it’s hard to imagine 

many armed conflicts taking place in areas like that, which 

appears to be our greatest threat today—I mean, it seems that the 

types of wars we’ve had in the past are changing somewhat—so, it 

seems to me, if we were to—going to go into Somalia or Yemen or 

Pakistan, which even is more immediate—if we were to go into 

that kind of conflict, the safety of our troops would always be an 

issue, it seems, and especially in the surgical types of operations 

that we’ve had. So it seems like, in many cases, per the way this 

is drafted, the President would actually consult 3 days after it took 

place, at which time we’re semiengaged. 

Mr. BAKER. Right. 

Senator CORKER. And I think that’s where Congress finds itself 

many times. It’s hard to undo an engagement that already has men 

and women, that we don’t want to see harmed, in harm’s way. Is 

that correct? 

Mr. BAKER. That’s correct. I think that’s correct. 

Mr. CHRISTOPHER. Senator, it’s difficult to get into this refined 

definitional issue in this kind of a hearing. I suppose it might be 

argued that some of the actions in Pakistan at the present time 

would be covered by the resolutions after 9/11 which authorized the 

President to take action against al-Qaeda and other terrorist 

groups. I’d say that’s a very difficult definitional issue. There will 

always be difficult definition of issues as to what involves combat 

operations lasting longer than 7 days. But, after working on this 

issue for a long time, that was the best we could do to find some 

definition that had some meaning for the future. 

Senator CORKER. Well, I think the contributions that have been 

made are outstanding, and I thank you for coming before our committee and doing this work. I think that what it also does is, raises 

lots of issues for us to think through as we try to refine it. 

I would just reiterate, just to be the third person to mention 

this—I think, to the extent you establish staff with a consultative 

group, I think it does, in fact, give the President, on one hand, one 

place to go. I think, in the process of giving the President one place 

to go, I think that the other committees of jurisdiction end up sort 

of becoming even more irrelevant, which we’re already—I mean, 

I—in fairness, this committee’s pretty irrelevant as it relates to 

23 

those kinds of actions anyway. That’s just the way it is. I’m not 

complaining. But, it seems to me that this committee, with staff, 

could end up creating a situation where Armed Services, Intelligence, Foreign Relations even become less relevant in the process. 

That could be one of the byproducts. I understand why, in fact, you 

did it, to make the knowledge at that consultative time equal, as 

much as possible. It’s never going to be equal to the administrative 

branch, because they just—look, they have the tools and—and 

should have the tools, OK—but, I think there’s a—there’s a balance 

there that one ought to think about, and I wonder whether we’d 

be better off having specific individuals in each of these committees 

that are on the committee staff of Foreign Relations, of Armed 

Services, of Intelligence, that are—that make up—that are specifically aligned or part of that consultative group. I think that’s a 

much better way of doing it. Otherwise, Chairman Kerry, you 

know, I—I think, in essence, you and Senator Lugar become far 

less relevant in the process. 

So, anyway, thank you very much. I see that my time is up. It 

looks like somebody might want to say something. 

Mr. HAMILTON. Senator, may I say that I think these staff members really are an internal matter, that your judgment may be better than ours on the Commission, and we would recognize that. 

With regard to the definitional problems, you cannot define precisely everything that might occur. You just can’t do it. And we 

wrestled a lot with the definitions. And we did the best we could. 

And we did not want to overdefine anything. But, at the end, it 

seems to me, what is really important here is that we require 

meaningful consultation. That’s what’s really important. And I 

think you can, to be blunt about it, just get lost in the definitions. 

You’re trying to define the undefinable, in effect. And so, while 

attention has to be paid to those—and I don’t want to denigrate 

that effort—you have to understand that you cannot get precise 

definitions for all of these possible engagements across a wide spectrum. 

At the end of the day, what you really have to focus on is, you’ve 

got a situation today where there is no requirement for a President 

to consult with Members of Congress on this issue. And we’re saying, ‘‘Mr. President, you must consult.’’ And that, to me, is the 

overwhelming point. 

Mr. CHRISTOPHER. Mr. Chairman, I wonder if I could use Senator 

Corker’s question to make a broader comment. 

The CHAIRMAN. Absolutely. 

Mr. CHRISTOPHER. When we finished our discussions in the committee, we had an important decision to make. Should we just 

make it a recommendation, put out a report like this, or should we 

try to draft a statute? And we felt it was more likely to be practically useful to draft the statute. 

Having done the draft, we don’t have any great pride of authorship and we would be glad to work with Senators or their staff to 

try to perfect it and find some better ways to deal with these 

issues. 

I think we were right in trying to draft the statute so you’d have 

something concrete before you, but, as I say, this cannot be the 

24 

final word, and the Congress will work its will, and we’ll work with 

you so you can work your will. 

The CHAIRMAN. Well, thank you, Mr. Secretary. 

I don’t think it’s a—frankly, as complicated as maybe some people think it sounds, but I’m—I think the power of this is, No. 1, 

that you require the consultation. But, it’s also equally as powerful 

that you require Congress to step up after a period of time and 

take a position. 

And, frankly, both serve all of our interests. I mean, the—you 

know, the term ‘‘significant armed conflict,’’ including any operation that either lasts 7 days or that the President knows is going 

to last 7 days—so, he comes to you, and, in the consultative process, says, ‘‘Look, this is going to take a few weeks. It’s a tough, big 

operation,’’ so you know that you’re in that posture. But, it also 

requires us to apply a certain amount of practical common sense 

and reasonableness standard here. 

I can easily see what’s happening—I mean, we’re not at war with 

Pakistan. I don’t think, by anybody’s definition, we’d say we’re at 

war with Pakistan. We are at war in Afghanistan against al-Qaeda 

and Taliban efforts, et cetera, that are supportive of al-Qaeda. 

And—but the actions in Afghanistan—in Pakistan are sort of crossborder, that clearly would fit into either paragraph 1 or paragraph 

2 of the limitations—all right, not paragraph 1 or 2, but those particular two limitations. And I think a reasonable standard applied 

to that finds that pretty quickly. 

What’s important here is that we resolve something we haven’t 

been able to do, which is get Congress to act. I mean, that’s pretty 

significant. And it’s in the interest of any President to consult, 

because a President who doesn’t consult and doesn’t have the support of Congress isn’t going to be able to sustain this for very long, 

and then we’re all weakened as a consequence of that. 

So, I think that, again, you know, we can work out the details 

of it, but I think the consultative piece—you know, if we’re consulting as a group and it is specified who the President is going to 

consult with, we’re going to bring our existing staff, either from 

this committee, Carl Levin, John McCain, et cetera, from Armed 

Services, Intelligence people. We’re all going to consult, anyway, 

because this is big stuff. It’s important stuff that has lives at stake 

and the interests of the country. So, I think the staff thing is the 

least of our issues. I think, just keeping it clean and simple and 

setting it up so you require the consultation, and then have this 

vote structure, is a very significant step forward, because we’ve 

been at absolute gridlock on this issue for 35, 40 years now—30 

years. 

Senator CORKER. If I could respond to Secretary Hill, I want to 

say that, from my perspective—and I appreciate what he’s saying, 

‘‘no pride of ownership’’—I think the offering of legislative language 

is a huge contribution. I think, otherwise—and I think the fact that 

you’ve done that actually allows us to think through some of these 

details that otherwise we wouldn’t. So, I thank all three of you, and 

I certainly appreciate your being here today. 

Senator KAUFMAN. Mr. Chairman, I’d just—— 

The CHAIRMAN. Senator Lugar and I want to thank you for protecting our relevancy here. We’re particularly grateful. 

25 

Senator CORKER. Well, I will say this, that I don’t think the Foreign Relations staff, because of the way we deal with foreign aid, 

deal with other kinds of things, just willy-nilly passing out program 

after program, and not really looking at eliminating the ones that 

we feel are less—I think we do, in fact, render ourselves very irrelevant on some of these things. And I know that you want to change 

that, and I—— 

The CHAIRMAN. Appreciate the—— 

Senator CORKER. [continuing]. Appreciate it. 

Senator KAUFMAN. Mr. Chairman, just one other comment, and 

that is, you know, like, for instance, a covert action has to be approved by the Intelligence Committee, so I think one of the things 

we can do on this—and it’s not as big a problem as I think you 

think it is, because the Congress does have power in a lot of these 

areas, and it’s our job to go through and find out where different 

Congress committees have to approve different actions by the 

President, and we all know that one of the big things is the power 

of the purse strings. I mean, eventually—— 

Mr. BAKER. Right. 

Senator KAUFMAN. [continuing]. They’ve got to get the appropriations approved. So, this—think this is an excellent, excellent proposal, and I think when you look at it in the total of the Congress’s 

responsibility and the Congress’s powers in this, wrestling with the 

President, I think this is going to turn out to be something that’ll 

be—the definitional problems are not as great as they may sound. 

Mr. BAKER. May I make one point, Mr. Chairman, on relevancy? 

I think this proposal of ours—now, of course, I’m biased, but—I 

think this offers an opportunity for this committee to take the lead 

on a matter that would enhance the relevancy, Senator Corker, of 

this committee. You have a statute in this area, which is a joke. 

It is observed more in the breach than in the observance. And at 

the very least, that is not good in a nation of laws, that our primary statute in this area is observed more in the breach than in 

the observance. 

So, if we can replace that with something that’s workable and 

practical and pragmatic, that enhances consultation between the 

branches, that alone, I think, will help the relevancy of the committee, if this were the movant committee in doing that. 

The CHAIRMAN. Senator Feingold, thanks for your forbearance for 

this little dialogue. We appreciate it. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Obviously, we’re so fortunate to have such an exceptionally distinguished panel. And thank you for all your work on this subject. 

I’d like to use some of my time to just make a statement and 

then ask a couple of questions. 

As we continue to grapple with the profound costs of rushing into 

a misguided war, it is essential that we review how Congress’s war 

powers have been weakened over the last few decades, and how 

they can be restored. 

The war in Iraq has led to the deaths of thousands of Americans 

and the wounding of tens of thousands, and will likely end up costing us a trillion dollars. What if we had had more open and honest 

debate before going to war? What if all the questions about the 

administration’s assertions had been fully and, to the extent 

26 

appropriate, publicly aired? So, clearly any reforms of the War 

Powers Resolution must incorporate these lessons and foster more 

deliberation and more open and honest public dialogue before any 

decision to go to war. 

And I appreciate that attention is being drawn to this critically 

important issue, which, of course, goes to the core of our constitutional structure. It’s a conversation that we need to continue to 

have. 

But, I am concerned that the proposals made by the Baker-Christopher Commission cede too much authority to the executive 

branch in the decision to go to war. Under the Constitution, Congress has the power ‘‘to declare war.’’ It is not ambiguous in any 

way. 

The 1973 War Powers Resolution is an imperfect solution. However, it does retain Congress’s critical role in this decisionmaking 

process. The Commission’s proposal, on the other hand, would require Congress to pass a Resolution of Disapproval by a veto-proof 

margin if it were unhappy with the President’s decision to send our 

troops into hostilities. That means, in effect, that the President 

would need only one-third of the Members, plus one additional 

Member of either House, to continue a war that was started unilaterally by the President. Now, that cannot be what the Framers intended when they gave to the Congress the power to declare war. 

Since the War Powers Resolution was enacted, several Presidents 

have introduced troops into battle without obtaining the prior 

approval of the Congress. The campaigns in Granada and in Panama, are a few examples. Neither of these cases involved imminent 

threats to the United States that justified the use of military force 

without the prior approval of Congress. The simple solution to this 

problem would be for the President to honor the Constitution and 

seek the prior approval of Congress in such scenarios in the future. 

And, while the consultation required by the War Powers Resolution is far from perfect, I think it is preferable to the Commission’s 

proposal to establish a consultation committee. If this bill had been 

in place before the war in Iraq, President Bush could have gone— 

could have begun the war after consulting with a gang of 12 Members of Congress, thereby depriving most of the Senators in this 

room of the ability to participate in those consultations as we did 

in the runup to the Iraq war. 

The decision to go to war is perhaps the most profound ever 

made by our Government. Our constitutional system rightly places 

this decision in the branch of government that most closely reflects 

the will of the people. History teaches that we must have the support of the American people if we are to successfully prosecute our 

military operations. The requirement of prior congressional authorization helps to ensure that such public debate occurs and tempers 

the potential for rash judgment. Congress failed to live up to its 

responsibility with respect to the decision to go to war in Iraq. We 

should be taking steps to ensure it does not make this mistake 

again. We should be restoring this constitutional system, not further undermining it. 

Mr. Baker, part of the premise of the Commission’s finding is 

that several Presidents have refused to acknowledge the constitutionality of the War Powers Resolution. And I note that, of course, 

27 

in practice, most do honor the resolution. In your view, does the 

President’s Commander in Chief authority give him the authority 

to ignore duly enacted statutes? 

Mr. BAKER. Duly enacted statutes? Not in my view. On the other 

hand, there has been—you said ‘‘most Presidents,’’ Senator Feingold. All Presidents have refused to acknowledge the—or, all Presidents have questioned the constitutionality of the War Powers 

Resolution. 

Senator FEINGOLD. Right. 

Mr. BAKER. Both Democrat and Republican. 

Senator FEINGOLD. Right. I simply said ‘‘several Presidents 

refused.’’ 

Mr. BAKER. Yes. 

Senator FEINGOLD. Right. But, most have honored the resolution, 

in practice. 

Mr. BAKER. Well, that’s not really quite accurate, sir. They 

send—they file reports in keeping with—the language is ‘‘in keeping with,’’ but never has one President filed a report ‘‘pursuant to’’ 

the War Powers Resolution. 

Senator FEINGOLD. Well, I—and, nonetheless, I appreciate your 

answer to the basic question, and it seems to me that much of the 

ambiguity you attribute to the War Powers Resolution would be 

resolved if future Presidents simply abided by the resolution. That 

would help solve the ambiguity. 

Mr. Hamilton, before the Iraq war, every Senator had the opportunity to at least review the intelligence assessments on Iraq, particularly the October 2002 NIE. I concluded that there was insufficient evidence to justify the decision to go to war. Under your bill, 

wouldn’t the full Congress have even less access to the intelligence 

supporting the decision to go to war? Wouldn’t that intelligence be 

limited to the gang of members on the consultation committee? 

Mr. HAMILTON. With the consultative committee, I think you 

expand the number of members that would be brought into the discussions involving the highest level of intelligence. In other words, 

you’d have more members involved, under our proposal, that you 

do now, because you have a—— 

Senator FEINGOLD. But—well, I was a—I was a relatively middle, 

junior member of the Foreign Relations Committee. It was not, at 

that time, a member of the Intelligence Committee. 

Mr. HAMILTON. Yes. 

Senator FEINGOLD. At some point, I was afforded the opportunity 

to go down to a secured room and to hear directly from the CIA 

people whether they felt the same thing that we were hearing publicly. And I’ve got to tell you, their tone, when they were trying to 

express these arguments that the President was making, was 

rather tepid. And it gave me a feeling that something was wrong 

here. And I would, apparently under this scenario, not have been 

a part of that process. Now, I’m not saying my role was critical, but 

I did end up being one of the people who went to the floor immediately and said, ‘‘I’m not buying this al-Qaeda connection. I’m not 

buying the notion that Saddam Hussein is likely or ready to attack 

the United States.’’ It appears that somehow somebody in my situation would not necessarily be a part of that pre-, you know, military action process. 

28 

Mr. Hamilton. 

Mr. HAMILTON. Well, I think, under the law today, the President 

doesn’t even have to consult with Members of Congress before he 

takes you into war, because the provisions in the War Powers Resolution are very vague with regard to consultation. 

We expand greatly the number of Members who would be 

involved in that consultative process here. 

Senator FEINGOLD. It appeared, though, in this circumstance of 

Iraq, that this was part of the consultative process, that our access 

to the people from the President’s CIA was pursuant to a discussion that led to a vote of the full Senate. 

Mr. HAMILTON. Well, the other—— 

Senator FEINGOLD. So, this was a process where all Members— 

well, perhaps not all, but at least members of the Foreign Relations—all members of the Foreign Relations Committee were given 

the opportunity to participate in that kind of—— 

Mr. HAMILTON. And the proposal that we’re putting before you— 

Members of Congress are required to vote on it. 

The CHAIRMAN. Senator—— 

Mr. HAMILTON. You didn’t have that—you don’t have that 

requirement, under present law. 

The CHAIRMAN. Yes, there is no requirement, under the present 

law, at all. What happened is, we did it, under the prerogatives of 

each of the committees, because the committee chairs and ranking 

members understood that that was part of the responsibility. 

Nothing in here—and we discussed before you came here—about 

this consultative component being strictly in fulfillment of the 

requirement that the President let us know what he’s thinking of 

doing so that those other committees—that’s why each of them are 

part of it—the Intelligence Committee, the Armed Services Committee, the Foreign Relations Committee—would then go about 

their normal business of involving all of their members. I mean— 

but, there no statute that required that for you, either, at this 

point. 

Senator FEINGOLD. I’d like to believe that, Mr. Chairman, but it 

strikes me that this provides an opportunity, that the President 

doesn’t currently have, to say, ‘‘Look, I went to this consultative 

process that’s provided by this new statute, so I have even less 

need to go through a formal vote,’’ which, you know, as we just 

talked about, most Presidents have decided—President Bush, on 

the first gulf war, even though he may not have taken the view 

that he had to do it, he went ahead and did it. I think this creates 

a process that could end-run the feeling on the part of a President 

that he needs to go through a process that would actually involve 

this kind of participation. But, I’m not saying this doesn’t literally 

require it. It’s what—— 

Mr. BAKER. But, Senator—— 

Senator FEINGOLD. [continuing]. Effective—yes, Mr. Baker. 

Mr. BAKER. [continuing]. We require a vote within 30 days, so 

the President is going to be facing a vote of the Congress. And if 

the vote is a Resolution of Disapproval, that’s going to have very 

serious adverse impacts on the President’s ability—— 

Senator FEINGOLD. But, in the case of Iraq, of course—— 

Mr. BAKER. Well, that—of course, you know—— 

29 

Senator FEINGOLD. Thirty days after it would have been not too 

helpful. 

Mr. BAKER. Well, that’s true, but the President—both Presidents 

went to the Congress to get approval, and actually obtained 

approval. 

Now, back to the point you made about the observance of a statute duly enacted and whether a President can question its constitutionality, they’ve—there’s always been the ability of Presidents to 

question constitutionality. And in this area, it has consistently 

been questioned by both Democratic and Republican Presidents. 

Presidents have sent troops abroad, Senator Feingold, 264 times, 

during which period the Congress has declared war 5 times. So, 

we’re faced with a situation—we expressly—I think, before you 

arrived, we made it—we had a dialogue here about the fact that 

we have expressly preserved the rights of Congress to make the argument that I think you’re making, and the right of the President 

to make the argument that all Presidents have made since the War 

Powers Resolution was passed, that the Constitution gives either 

(A) the Congress the authority, or (B) the President the authority. 

So, we expressly reserve those constitutional arguments, put them 

to the side, because they are not going to be solved in the absence 

of a constitutional amendment or a Supreme Court opinion. So, we 

don’t prejudice either branch. What we’re trying to do is find a 

workable solution here that will improve the relationship and the 

consultation that takes place between the President and Congress 

when the Nation’s going to war. 

Senator FEINGOLD. I respect the effort, and I respect the intent. 

And it may well work that way. My concern—and I know my time’s 

up, Mr. Chairman—— 

The CHAIRMAN. No, take your—no problem. 

Senator FEINGOLD. [continuing]. Is that I witnessed, as a nonSenator, the excellent debate that was held on the floor of the 

United States Senate prior to the first gulf war. I also was involved 

in the truncated and, unfortunately, weak debate prior to the Iraq 

war. But, any process that could somehow make a President feel 

that he did not need to go through that process prior to such a 

major action would trouble me. So, that’s how I need to review this. 

Could this lead to that practical effect, as opposed to the literal 

effort you have made to avoid such a consequence? 

Mr. BAKER. Well, I don’t think so—— 

Senator FEINGOLD. That is the nature of my concern. 

Mr. BAKER. Well, my—let me just quickly answer it. I don’t 

believe so, because the President has that power today. So, we’re 

not—in this effort, we—I don’t see this as giving the President 

something he doesn’t have today. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Feingold. Those are—an important inquiry, and I think it’s worth examining the sort of Iraq 

experience, in terms of the vote up front versus late. 

But, there may be some way, Mr. Secretaries and Mr. Chairman, 

in terms of the definitions—I know you all have struggled with 

this, and maybe we can spend a minute sort of reviewing that, as 

to whether you can, you know, cover those rare circumstances 

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30 

frontation—i.e., I mean, the invasion of a country is a pretty big 

deal. There ought to be some way—I mean, that is certainly separate-able from about 200-and-some of those instances of use of 

force. And so, maybe there’s a way to try to have a balance here, 

and I think we ought to sort of examine that. 

At any rate, are there any further questions from any colleagues? 

[No response.] 

The CHAIRMAN. There will be some questions for the record, if 

you don’t mind. I think we want to try to fill this out a little bit. 

And so, I’m going to leave the record open for a week, and if you— 

I hope we don’t overly impose on your goodwill here, but I think 

there will be a few questions for the record that might be helpful. 

Mr. BAKER. Chairman, we’ll be glad to respond to those 

questions. 

The CHAIRMAN. Again, we really thank you. This is just a huge 

and complicated topic, as we can see, but I think you’ve made a 

major, major contribution to our thinking about how to proceed forward and we want to work with you very closely to see how we can 

take this further. So we thank you for coming today. 

Mr. BAKER. Thank you, sir. 

The CHAIRMAN. We stand adjourned. 

[Whereupon, at 11:38 a.m., the hearing was adjourned.] 

ADDITIONAL QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD

RESPONSES OF HON. WARREN M. CHRISTOPHER TO QUESTIONS SUBMITTED BY

SENATOR RUSSELL D. FEINGOLD

Question. Mr. Christopher, in your view, since 1973, have past Presidents always 

sought advance congressional approval of military operations in all situations in 

which such approval would have been feasible? 

Answer. Presidents have not always sought advance congressional approval for 

military operations, including the sorts of operations defined under our proposed 

statute as ‘‘significant armed conflicts.’’ Examples of Presidents not seeking or obtaining formal approval would include the military actions in Grenada in the 1980s 

and Panama in the early 1990s. And while President Clinton sought congressional 

approval for the military actions he initiated in the former Yugoslavia in the 1990s, 

no express approval was obtained before those significant armed conflicts began. In 

other instances, of course—including both Iraq wars and the war in Afghanistan— 

Presidents have obtained advance approval. However, even when there has been 

advance approval or consultation—and this goes back to the Vietnam war and 

before—there have been claims that the consultation or approval was rushed or 

based on incomplete information. Also, there have been charges that the consultation after Congress gave the initial approval has been lacking, either through fault 

of the President or Congress. 

In any event, the focus of our proposed statute is to ensure a meaningful exchange 

of views and formal consultation, both at the outset, and throughout any conflict in 

which the country engages. We call for Congress within 30 days of the initiation of 

a significant armed conflict to vote up or down on the action, so its will is known. 

We believe that the Joint Congressional Consultation Committee that our statute 

creates will allow the President to share information with the Congress more 

directly and obtain its meaningful, independent advice. We also think the full Congress will work with the Joint Committee and its members to obtain the necessary 

information to vote on resolutions of approval or disapproval. The Joint Committee 

will also serve as a conduit for the full Congress and its Members to express their 

views to the White House. 

All in all, we think our proposed statute will significantly improve the current 

state of affairs. We do not believe the War Powers Resolution of 1973 has encouraged or facilitated meaningful consultation (just the opposite). And we do not believe 

the 1973 law has encouraged or compelled Presidents to seek congressional 

approval. 

31 

Question. Mr. Christopher, the consultation and approval procedures of your bill 

only apply to significant armed conflict which does not include ‘‘limited acts of reprisal against terrorists or states that sponsor terrorism.’’ Given that the use of 

military force against another government could provoke an extended military conflict and is defined as an act of war under the laws of armed conflict no matter how 

‘‘limited’’ it may be, wouldn’t it be preferable to seek prior congressional approval 

whenever possible? 

Answer. Prior approval is usually ideal for a number of reasons, but sometimes 

it is impossible to obtain as a practical matter because of the need for secrecy or 

other emergent circumstances. Most constitutional scholars agree that the President 

has some latitude to act unilaterally to protect the country’s interests. Section 4(A) 

of our proposed statute encourages the President to consult regularly with the Joint 

Congressional Consultation Committee, even with regard to such matters. 

Our statute recognizes, however, that even short, swift military actions can lead 

to longer engagements. Thus, sections 3(A)(ii) and 4(B) require the President to consult and trigger the congressional voting mechanisms in section 5 in the case of ‘‘any 

combat operation by U.S. armed forces . . . expected by the President to last more 

than a week.’’ One might cynically argue that Presidents will purposefully underestimate the time required for a particular operation so as to avoid the consultation 

and voting requirements in sections 4 and 5. However, any statute in the war powers area must, at some level, assume the good faith of the parties involved, and Congress always has political means at its disposal to address such concerns. The 

enforcement provisions established in the 1973 resolution, while defended as good 

policy by some, have never been invoked by the full Congress or enforced by the 

courts. 

In any event, section 4(B) of our proposed statute makes clear that if a ‘‘limited 

act of reprisal against terrorists’’—one of the sorts of actions described in section 

3(B) of the statute—‘‘becomes a significant armed conflict as defined in section 3(A) 

[by reason of lasting more than seven days], the President shall similarly initiate 

consultation with the Joint Congressional Consultation Committee,’’ pursuant to 

section 4, and section 5’s voting procedures are triggered as well. 

Question. Mr. Christopher, do you believe that congressional authorization to fight 

al-Qaeda extends to the entire world, including, for instance, U.S. military strikes 

in Somalia? What are the limitations on the global use of such authorization and 

what is Congress’s role in defining those limitations? 

Answer. The September 18, 2001, joint resolution that Congress enacted, Public 

Law 107–40, S.J. Res. 23, provides (italic added): 

That the President is authorized to use all necessary and appropriate 

force against those nations, organizations, or persons he determines 

planned, authorized, committed, or aided the terrorist attacks that occurred 

on September 11, 2001, or harbored such organizations or persons, in order 

to prevent any future acts of international terrorism against the United 

States by such nations, organizations or persons. 

Such hypothetical questions are hard to answer given the limited facts, but in 

light of the open-ended language of the joint resolution, if the President found there 

was an organization in Somalia that aided the September 11 attacks and that organization posed a current threat, one could certainly argue that the authorization 

extends that far. 

Congress can always limit or define the scope of its authorizations—either by time 

or geographic scope. Presidents may debate the constitutional force of such limitations, but Congress, in drafting its authorizations, controls the pen and can be as 

clear as it wants in what is being authorized. In the first Iraq war, for example, 

Congress authorized the President to take military action against Iraq, but limited 

the authorization to enforcing existing U.N. Security Council resolutions. Thus, once 

the U.S.-led coalition expelled Iraq from Kuwait, there was a strong argument to 

be made that had the armed forces deposed the Iraqi Government, the President 

would have been acting beyond his congressional authorization. Congress and President Ronald Reagan’s administration also worked closely on the United States 

peacekeeping mission in Lebanon. After negotiations between congressional leaders 

and the White House, Congress specifically authorized American troops to remain 

in Lebanon for 18 months. During the Vietnam war, Congress passed measures, 

including what is known as the ‘‘Fulbright Proviso’’ in the War Forces-Military Procurement Act of 1971 that placed limitations on providing military support and 

assistance to the Governments of Cambodia or Laos. This Proviso was criticized, 

however, as being unclear. In recent years, Senator Byrd, for example, proposed a 

32 

sunset, or time, limitation on the recent Iraq War Authorization. That amendment 

was rejected. 

RESPONSE OF HON. LEE H. HAMILTON TO QUESTION SUBMITTED BY SENATOR

RUSSELL D. FEINGOLD

Question. Mr. Hamilton, in your view, were the consultations with the Gang of 

Eight on President Bush’s warrantless wiretapping and interrogation programs sufficient to ensure adequate oversight? If not, would we be well advised to extend a 

similar oversight structure of the power to go to war? 

Answer. Our Commission has gone out of its way not to call balls and strikes, 

particularly concerning recent events. 

The Gang of Eight structure is different than the one proposed in our statute. We 

propose involving a larger group (20 key leaders in Congress from both sides of the 

aisle) and requiring up-or-down votes of the whole Congress concerning any significant armed conflict, as well as smaller conflicts that grow into significant ones. We 

think our procedure provides not only a considerable amount of oversight, but a 

good and productive forum for the open and timely exchange of views. 

(33) 

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