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S. HRG. 110–902 

EXERCISING CONGRESS’S CONSTITUTIONAL 

POWER TO END A WAR 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JANUARY 30, 2007 

Serial No. J–110–5 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 8 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement .......................................................................................... 150 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 6 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 170 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 186 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Barron, David J., Professor of Law, Harvard Law School, Cambridge, Massachusetts ................................................................................................................. 10 

Berenson, Bradford, Partner, Sidley Austin LLP, Washington, D.C. .................. 15 

Dellinger, Walter, Douglas B. Maggs Professor of Law, Duke University 

School of Law, Durham, North Carolina, and Former Acting Solicitor General ........................................................................................................................ 17

Fisher, Louis, Specialist in Constitutional Law, Law Library, Library of Congress, Washington, D.C. ...................................................................................... 14 

Turner, Robert F., Center for National Security Law, University of Virginia 

School of Law, Charlottesville, Virginia ............................................................. 12 

QUESTIONS AND ANSWERS 

Responses of David J. Barron to questions submitted by Senators Whitehouse 

and Kennedy ......................................................................................................... 33 

Responses of Bradford Berenson to questions submitted by Senator Whitehouse ..................................................................................................................... 41 

Responses of Louis Fisher to questions submitted by Senators Whitehouse 

and Kennedy ......................................................................................................... 43 

Responses of Robert F. Turner to questions submitted by Senator Whitehouse ..................................................................................................................... 49 

Questions submitted by Senators Kennedy and Whitehouse to Walter 

Dellinger (Note: Responses to questions submitted by Senators were not 

received as of the time of printing, November 2, 2009) 

SUBMISSIONS FOR THE RECORD 

Barron, David J., Professor of Law, Harvard Law School, Cambridge, Massachusetts, prepared statement .............................................................................. 58 

Berenson, Bradford, Partner, Sidley Austin LLP, Washington, D.C. .................. 65 

Center for American Progress, Washington, D.C. ................................................. 80 

Congressional Restrictions on U.S. Military Operations, (CRS Report, January 

16, 2007), Washington, D.C. ................................................................................ 85 

Constitution Project, Washington, D.C., report .................................................... 115 

Dellinger, Walter, Douglas B. Maggs Professor of Law, Duke University 

School of Law, Durham, North Carolina, and Former Acting Solicitor General, prepared statement and letter ................................................................... 145 

Fisher, Louis, Specialist in Constitutional Law, Law Library, Library of Congress, Washington, D.C., prepared statement ................................................... 153 

Grimmett, Richard F., Specialist in National Defense, Washington, D.C., CRS 

Report (Congressional Use of Funding Cutoffs) ................................................ 164 

Page

IV 

Kmiec, Douglas W., Chair and Professor of Constitutional Law, Pepperdine 

University School of Law, Malibu, California, letter ........................................ 178 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania: 

Attorney General Alberto Gonzales, January 30, 2007, letter ..................... 188 

Attorney General Alberto Gonzales, January 26, 2007, letter and attachment ............................................................................................................... 189 

Turner, Robert F., Center for National Security Law, University of Virginia 

School of Law, Charlottesville, Virginia ............................................................. 203 

Whose War Powers?, Noah Feldman, February 4, 2007, article ......................... 266 

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EXERCISING CONGRESS’S CONSTITUTIONAL 

POWER TO END A WAR 

TUESDAY, JANUARY 30, 2007 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10 a.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Russell D. Feingold, presiding. 

Present: Senators Feingold, Kennedy, Durbin, Cardin, Whitehouse, Specter, Hatch, and Graham. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Good morning. I call the Committee to order. 

Welcome to this hearing of the Senate Judiciary Committee entitled ‘‘Exercising Congress’ Constitutional Power to End a War.’’ We 

are honored to have with us this morning a distinguished panel of 

legal scholars to share their views on this very important and obviously timely issue. 

I really do want to thank Chairman Leahy for allowing me to 

chair this hearing. Let me start by making a few opening remarks, 

and I will recognize Senator Specter for an opening statement, and 

then we will turn to our witnesses. 

It is often said in this era of ubiquitous public opinion polls that 

the only poll that really matters is the one held on election day. 

On November 7, 2006, we had such a poll, and all across this country the American people expressed their opinion on the war in Iraq 

in the most significant and meaningful way possible. They voted. 

And with those votes, they sent a clear message that they disagree 

with this war and they want our involvement in it to stop. 

The President has chosen to ignore that message, so it is up to 

Congress to act. The Constitution gives Congress the explicit power 

‘‘to declare War,’’ ‘‘to raise and support Armies,’’ ‘‘to provide and 

maintain a Navy,’’ and ‘‘to make Rules for the Government and 

Regulation of the land and naval Forces.’’ In addition, under Article 

I, ‘‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.’’ These are direct quotes 

from the Constitution of the United States. 

Yet to hear some in the administration talk, it is as if these provisions were written in invisible ink. They were not. These powers 

are a clear and direct statement from the Founders of our Republic 

that Congress has the authority to declare, to define, and ultimately to end a war. Our Founders wisely kept the power to fund 

2 

a war separate from the power to conduct a war. In their brilliant 

design of our system of Government, Congress got the power of the 

purse and the President got the power of the sword. 

As James Madison wrote, ‘‘Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war 

ought to be commenced, continued, or concluded.’’ 

The President, in my view, has made the wrong judgment about 

Iraq time and again—first by taking us into a war on a fraudulent 

basis, then by keeping our brave troops in Iraq for nearly 4 years, 

and now by proceeding, despite the opposition of the Congress and 

the American people, to put 21,500 more American troops into 

harm’s way. 

If and when Congress acts on the will of the American people by 

ending our involvement in the Iraq war, Congress will be performing the role assigned it by the Founding Fathers—that is, defining the nature of our military commitments and acting as a 

check on a President whose policies are weakening our Nation. 

There is little doubt that decisive action from the Congress is needed. 

Despite the results of the election and 2 months of study and 

supposed consultation, during which experts and Members of Congress from across the political spectrum argued for a new policy, 

the President has decided to escalate the war. When asked whether 

he would persist in this policy despite congressional opposition, he 

replied, ‘‘Frankly, that’s not their responsibility.’’ 

Last week, Vice President Cheney was asked whether the nonbinding resolution passed by the Foreign Relations Committee that 

will soon be considered by the full Senate would deter the President from escalating the war. He replied, ‘‘It’s not going to stop us.’’ 

In the United States of America, the people are sovereign, not 

the President, and it is Congress’ responsibility to challenge an administration that persists in a war that is misguided and that the 

country opposes. We cannot simply wring our hands and complain 

about the administration’s policy. We cannot just pass resolutions 

saying your policy is mistaken. And we cannot stand idly by and 

tell ourselves that it is the President’s job to fix the mess he made. 

It is also our job to fix the mess, and if we do not do so, I think 

we are abdicating our responsibilities. 

So tomorrow I will introduce legislation that will prohibit the use 

of funds to continue the deployment of U.S. forces in Iraq 6 months 

after the enactment of the bill. By prohibiting funds after a specific 

deadline, Congress can force the President to bring our forces out 

of Iraq and out of harm’s way. The legislation will allow the President adequate time to redeploy our troops safely from Iraq and will 

make specific exceptions for a limited number of U.S. troops who 

would remain in Iraq to conduct targeted counterterrorism and 

training missions and protect U.S. personnel. 

It will not hurt our troops in any way. They will continue receiving their equipment, training, and salaries. It will simply prevent 

the President from continuing to deploy them to Iraq. By passing 

this bill, we can finally focus on repairing our military and countering the full range of threats that we face around the world. 

Now, there is plenty of precedent for Congress exercising its constitutional authority to stop U.S. involvement in armed conflict. In 

3 

late December 1970, Congress prohibited the use of funds to finance the introduction of United States ground combat troops into 

Cambodia or to provide U.S. advisors to or for Cambodian military 

forces in Cambodia. 

In late June 1973, Congress set a date to cut off funds for combat 

activities in Southeast Asia. The provision read, and I quote, ‘‘None 

of the funds herein appropriated under this Act may be expended 

to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States 

forces, and after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purpose.’’ 

More recently, President Clinton signed into law language that 

prohibited funding after March 31, 1994, for military operations in 

Somalia, with certain limited exceptions. And in 1998, Congress 

passed legislation including a provision that prohibited funding for 

Bosnia after June 30, 1998, unless the President made certain assurances. 

Now, our witnesses today are well aware of this history, and I 

look forward to hearing their analysis of it as they discuss Congress’ power in this area. They are legal scholars, not military or 

foreign policy experts. We are here today to find out from them not 

what Congress should do, but what Congress can do. Ultimately, 

of course, it rests with the Congress itself to decide whether to use 

its constitutional powers to end the war. 

The answer should be clear. Since the President is adamant 

about pursuing his failed policies in Iraq, Congress has the duty to 

stand up and use its power to stop him. If Congress does not stop 

this war, it is not because it does not have the power. It is because 

it does not have the will. 

Now let me recognize the Ranking Member, Senator Specter, for 

any opening comments he would like to make. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chairman. I thank 

Chairman Leahy and you, Senator Feingold, for convening this 

very, very important hearing, and I thank the very distinguished 

array of experts who are here to give us some constitutional scholarly insights into these important issues. 

Before addressing the subject at hand, I want to make a very 

brief comment on a matter of some urgency. On Friday, the New 

York Times reported that there were procedures being employed in 

the Sixth Circuit and in the United States District Court in Oregon 

on the testing of the constitutionality of the Terrorist Surveillance 

Program which might undercut the ability of the litigants to 

present their case on a very important constitutional issue. And I 

wrote immediately to Attorney General Gonzales, and I received an 

answer yesterday from his Office of Legislative Affairs. And I 

would ask unanimous consent that both of those letters be incorporated in the record. 

Senator FEINGOLD. Without objection. 

Senator SPECTER. With the additional comment that the explanation in my judgment is insufficient. This is a very pressing matter, and this Committee has undertaken very extensive oversight 

4 

on this program, with some four hearings last year and legislation 

to bring that program under the Foreign Intelligence Surveillance 

Court. I am glad to see it is there. I do not think it eliminates the 

pending cases in the Federal court, and I believe this is a matter 

which will require considerable oversight by this Committee on an 

immediate basis. 

It is hard to have a problem more urgent than the Terrorist Surveillance Program, but we have one here today. It seems that one 

problem piles onto another, and all of enormous importance. 

My own judgment on the current confrontation between the executive and legislative branches, Article I and Article II, is that it 

leads to the answer that we have shared powers. Shared powers. 

The genius of the Constitution is in the separation of power and 

the checks and balances, and it is not only the checks and balances 

between Article I and Article II, the Congress and the executive, 

but Article III, the judicial branch. And it is my hope that we will 

yet avoid the confrontation which is imminent, with the Senate 

scheduled to take up these resolutions next week. 

Senator Lugar has an op-ed piece in the Washington Post today 

with some words of wisdom. Senator Lugar often has words of wisdom. I think they are especially wise today, and I make a couple 

of references. ‘‘The President and Congress must reach a consensus 

on how to protect our broader strategic interests regardless of what 

happens in those Baghdad neighborhoods or on the floor of the 

Senate. Otherwise, the fatigue and frustration with our Iraq policy 

that is manifest in the resolutions of disapproval before the Senate 

could lead not just to the rejection of the Bush plan but also to the 

abandonment of the tools and relationships we need to defend our 

vital interests in the Middle East.’’ 

We have an atmosphere, regrettably, of considerable suspicion 

with what the executive branch is doing to expand executive authority, really an ideological approach. And there are key figures 

in the administration who make no bones about it, very direct and 

very blunt, when they seek signing statements to contravene what 

is in the legislation the President has signed, where you have the 

Terrorist Surveillance Program or where you have the acts in 

Guantanamo that has to be struck down by the Supreme Court of 

the United States. And that has set the stage for, if not an atmosphere of distrust, an atmosphere of confrontation. 

There have been meetings. I attended one with the President. I 

attended another with the National Security Counselor Stephen 

Hadley. And those meetings are good. There is an overtone, I must 

say, more of persuasion by the administration than of consultation, 

but the voices in Congress which have been expressed are many 

undisputably friendly voices for the President—friendly voices of 

Republicans. I think the Democratic voices are not unfriendly 

voices, but there is an overtone perhaps of partisanship. But the 

Republican voices, mine included, which have been heard are 

friendly voices, really trying to work with the President to find an 

answer. And the words of Senator Lugar pick up on an alternative 

plan which has been floated, and this is what Senator Lugar says 

in a nutshell: ‘‘. . . with troops stationed outside urban areas in 

Iraq. Such a redeployment would allow us to continue training 

5 

Iraqi troops and delivering economic assistance, but it would not 

require us to interpose ourselves between Iraqi sectarian factions.’’ 

The President has asked for alternatives as well as objections, 

and the plan which has been articulated by key military figures 

and key political figures to give the Iraqis a time reference that 

they are going to have to act to restrain the sectarian violence and 

they are going to have to take over the security in Baghdad, those 

are two conditions explicitly laid down by the President in his 

State of the Union speech, and not to reduce our forces in Iraq, but 

to take them out of the cities where they are in the midst of the 

gunfire in what is conclusively a civil war, and to protect the infrastructure, to protect the oil resources, to aid and train the Iraqis, 

but not to try to deal with the sectarian violence which has led to 

so many casualties. And it would be my hope that the President 

would yet consider that option and perhaps other options in an effort to avoid the confrontation which is going to come next week. 

The President repeatedly makes reference to the fact that he is 

the decider. I would suggest respectfully to the President that he 

is not the sole decider, that the decider is a shared and joint responsibility, and that when we talk about the authority of the Congress on the power of the purse and the authority under Article I 

to maintain armies, we are talking about authority which ought to 

be recognized. 

There is one portion of Article I which I think has had insufficient attention, and that is the section which says, ‘‘to raise and 

support armies, but no appropriation of money to that use shall be 

for a longer term than 2 years.’’ 

Now, there is an express constitutional statement which is superior to the President’s generalized Article II authority or the congressional generalized Article I authority. The Constitution says it 

cannot be for a period longer than 2 years. I would supplement 

what Senator Feingold has said to point out that in 1974, legislation was signed by President Ford, passed by Congress, which said 

the troops have to be reduced to 4,000 in Vietnam within 6 months 

and 3,000 within a year. 

The President has shown flexibility on quite a number of matters. He opposed the 9/11 Commission, then agreed to it. He opposed the Department of Homeland Security, then agreed to it. He 

opposed the Weapons of Mass Destruction Commission, then 

agreed to it. He opposed putting the Terrorist Surveillance Program under the FISA Court, then agreed to it. And he opposed increasing our troops in Iraq, and now he is doing it. 

So I would say, with my red light about to go on, Mr. President, 

reconsider and recognize the shared responsibility with the Congress, and let’s work it out, and to respect Senator Feingold who 

has stated the dominant fact of the entire matter, and that is, the 

election. And it is true that the people are sovereign, and it is not 

a public opinion poll. It is a statement of policy reinforced by our 

Congress in a representative democracy. 

Thank you, Mr. Chairman. 

Senator FEINGOLD. Thank you, Senator Specter. Not only am I 

honored to have served with you on this Committee in many capacities, with you as Ranking Member of the Committee, and as 

Chairman of the Committee, but your statement indicates the imVerDate Nov 24 2008 12:42 Nov 20, 2009 Jkt 053356 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53356.TXT SJUD1 PsN: CMORC
6 

portant bipartisan role you play of trying to protect the role of the 

Constitution. 

It is interesting you talk about the NSA issue because it is really 

very closely related to what we are doing here today. This administration on many occasions and in many areas has put out a notion 

of Executive power that is not only extreme, but in many cases flies 

directly in the face of the words of the Constitution. You and I both 

are very pleased that the NSA program has come within the FISA 

process, and I intend to continue to work with you on that. And I 

am also grateful for your strong remarks about Congress’ power 

and the type of system that we have. And I think it is an excellent 

way to kick off this hearing. 

Now I would like to turn to Senator Hatch, who, of course, is also 

a very distinguished member of the Committee, a former Chairman 

of the Committee, who I have enjoyed serving with. Senator Hatch, 

would you like to make some remarks? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. If I could. I have enjoyed serving with you as 

well, Senator, and certainly with Senator Specter, who is doing a 

very good job on our side on this Committee. 

You know, words have meaning and titles send messages. The 

title of today’s hearing, when it refers to Congress’s constitutional 

power to end a war, can be taken at least two ways. To some, it 

might sound like an assertion of an explicit power directly to terminate a war or declare it over. If that is its message, that is incorrect. The Constitution grants no such power. 

The convention that framed our Constitution rejected empowering Congress to make war in favor of declaring war. Similarly, 

that convention unanimously rejected an amendment that would 

have granted Congress the power to declare peace. So the idea that 

Congress has some explicit power directly to end war or to declare 

peace does not come from the Constitution. 

The title of today’s hearing might instead be saying that the Constitution grants powers to Congress which might be used to help 

bring a war to an end. 

In general, that is a more defensible proposition that where we 

end up depends on where we start. I believe we must start with 

and be guided by the Constitution—not any constitution or a constitution invented to give us what we want at the moment, but the 

real Constitution. The real Constitution is built on the principle of 

the separation of powers which James Madison said has more intrinsic value than any other political truth. Only Congress can declare war, but while a declaration of war is necessary to define certain legal relationships between nations or with our own citizens, 

it is not necessary for the United States to engage in armed conflict. Congress has the authority to raise and support armies, but 

while this relates to the existence of the armed forces, it does not 

extend to commanding them in conflict or dictating battlefield policies and tactics. 

Some politicians here in Washington want to say what they 

would have done about authorizing force in the war on terror if 

they knew then what they know today. Neither our personal nor 

7 

political lives work that way. We have to do our best today based 

on what we know and what we have available to us today. 

It seems to me that the separation of powers leaves those who 

oppose the war with two options: they can either try to defund our 

troops, or they can add to the overall debate by publicly expressing 

their views. And we have, of course, both views being represented 

here on Capitol Hill. In exercising either of those options, I think 

we must consider not only our policy objectives but also the message that we send by our actions. We all know what the polls say 

about general support for that portion of the war on terror currently taking place in Iraq. We all saw on the news the public demonstrations as well as the vandalism taking place here in Washington just last weekend. But in addition to sending a message to 

the general public and the specific political constituencies, we must 

also consider the message that we are sending to our troops— 

[Protestors interrupt.] 

Senator FEINGOLD. The Committee will come to order. 

Senator HATCH. I understand— 

Senator FEINGOLD. The Committee has a long history of free 

speech, and I strongly support the First Amendment that guarantees that right. But— 

[Protestors interrupt.] 

Senator FEINGOLD. The Committee will be in order. 

Senator HATCH. All right— 

Senator FEINGOLD. The Committee will stand in recess until the 

police can restore order. 

Senator HATCH. I think we have order. Let me just say that I 

empathize with you, having lost my only brother in World War II, 

having lost a brother-in-law in Vietnam, and having just buried a 

top sergeant in the Marines in Arlington just a short while ago. 

But some who say they support our troops turn around and talk 

about defunding them, while others talk about—and I am concerned about your son and others if we defund them here and we 

do not support them and we do not do what is right. Or others talk 

about splitting appropriations hairs to fund certain troops but not 

others. 

The message to our troops is that we— 

[Protestors interrupt.] 

Senator HATCH. Let me finish my remarks. The message to our 

troops is that we no longer support them on our mission if we talk 

that way. 

Now, we have authorized whatever force is— 

[Protestors interrupt.] 

Senator HATCH. We have authorized whatever force is necessary 

to fight this war, and then some talk about de- authorizing certain 

uses of that force. The message to our troops is that we no longer 

support them or their mission. 

Now, some who voted to confirm General David Petraeus to lead 

the troops—and it was unanimous—to lead the troops in Iraq turn 

around and publicly attack the strategy that he developed. The 

message to our troops is that we no longer support them or their 

mission. 

The Constitution distinguishes between a singular declaration of 

war which it assigns to Congress and the active engaging in or levVerDate Nov 24 2008 12:42 Nov 20, 2009 Jkt 053356 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53356.TXT SJUD1 PsN: CMORC
8 

ying war, which it assigns to the President or the Commander-inChief. 

Now, disagreement with how the President uses his power does 

not give Congress the power to step in and take over. That would 

be the antithesis of the separation of powers. 

Now, I realize that it is easy to acknowledge the President’s 

power when we agree with how he uses it. The real test is when 

we disagree. Then the American people will see whether there are 

some principles on which we in this body will stand, or whether in 

the end it is just politics after all. 

This is an important hearing, and there are very strongly held 

views on all sides of these issues, certainly all sides of the issues 

involving war, and there are more than two sides. It is a very difficult time for us in Congress. It is an equally difficult time for the 

President. And I think we have to take into consideration all of 

these thoughts and do our very best to— 

[Protestors interrupt.] 

Senator FEINGOLD. Could we please—if we want to have this 

hearing, I need your cooperation so that we can proceed. 

Senator HATCH. That is all I have to say, Mr. Chairman. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I would simply say that the kinds of arguments that Senator 

Hatch has made—and he made them eloquently—are the kinds of 

arguments that have repressed over the last few years valid criticism of the Iraq war that would have, I think, caused us to recognize our mistakes earlier. But we have a friendly and open disagreement about that. 

Senator Durbin. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Mr. Chairman, thank you for calling this hearing. It is long overdue. I am sorry that we did not initiate this discussion earlier. 

Clearly, there is a frustration and anxiety among the American 

people about whether Congress has been listening. The last election told us that people wanted a change. It is clear that the American people do not want the change the President has proposed. We 

will debate that in the days to come. 

Though I disagree with the President’s policies and was one of 

23 to vote against the Use of Force resolution, I commend the 

President for coming to Congress for that vote. There were Presidents in years gone by who did not bother to make the trip, who 

decided to use force, commit troops, engage America in a war without any congressional voice. Many times I thought the silence of 

Congress was complicity; they did not want to be put on the spot 

to vote. That is why we are here. We represent a lot of good people 

across this country who count on us to be their voice. 

If you read the Use of Force resolution, the one that was considered and enacted a little over 4 years ago, and try to apply it to 

the situation today, you just wonder under what authority do we 

continue what we are doing in Iraq. The authorization that we 

gave the President—and I knew full well, and I think most did, 

that if we gave him this authority, he would use it—said that the 

9 

President is authorized to use the armed forces as he determines 

necessary and appropriate to defend the national security of the 

United States against a continuing threat posed by Iraq and enforce all relevant United Nations Security Council resolutions regarding Iraq. 

It goes on, of course, to speak about the threat of Saddam Hussein, the threat of weapons of mass destruction. All those are gone 

now, and the obvious question is: By what authority do we continue 

this war? And I think it is an important constitutional question. 

Let me also say for those who argue that for the United States 

Congress to engage in a bipartisan debate about our Constitution 

and our policy is somehow, quote, emboldening the enemy or undercutting our troops, they are wrong. This debate is evidence of 

what a democracy is all about. If we truly want democracy in Iraq 

and around the world, we need to lead not just by our great military but by example to show that yes, we can stand behind our 

troops—and we will— and their families, and still debate whether 

this is a wise policy or not. 

And to suggest that this debate undermines morale is to ignore 

another obvious fact—a fact which is shown in this morning’s 

newspaper. The President wants to send 21,000 more soldiers into 

Iraq, and this morning’s Washington Post tells us they will go into 

battle without the equipment they need. They will not have the 

body armor; they will not have the vehicles; they will not have the 

equipment they need to go into battle. 

Now, who is standing behind the troops when it comes to escalating this war in Iraq? Those who question whether this is the 

right policy in the right place, or those who would send 21,000 

more into battle and risk their lives without giving them the rest 

that they need, the time with their families, the equipment and 

training that they need to come home safely? 

I do not think that this is an indication of lack of support for our 

troops. We need to acknowledge the obvious. The President is the 

Commander-in-Chief, but we in Congress have a constitutional responsibility. Mr. Chairman, your hearing today will give us a 

chance to explore the options available to Congress to express the 

will of the American people, and I thank you for convening it. 

Senator FEINGOLD. Thanks, Senator Durbin. 

I thank Senator Whitehouse, our new member of the Committee, 

for his attendance as well. 

We will now turn to our panel of witnesses. We will proceed from 

the left to the right. I would ask the witnesses to limit their oral 

testimony to 5 minutes, and your complete statements will, of 

course, be included in the record. 

Will all the witnesses now please stand and raise your right 

hands to be sworn? Do you affirm that the testimony you are about 

to give before the Committee will be the truth, the whole truth, 

and nothing but the truth, so help you God? 

Mr. Barron. I do. 

Mr. Berenson. I do. 

Mr. Dellinger. I do. 

Mr. Fisher. I do. 

Mr. Turner. I do. 

Senator FEINGOLD. Thank you. You may be seated. 

10 

Our first witness will be Professor David Barron from the Harvard Law School. A graduate of Harvard Law School, Professor 

Barron clerked for Judge Reinhardt in the Ninth Circuit and for 

Justice Stevens on the United States Supreme Court. After his 

clerkships, he worked in the Office of Legal Counsel at the Department of Justice. In 1999, he joined the faculty at Harvard Law 

School. 

Professor Barron, welcome, and, of course, thank you for making 

the time to be here this morning. You may proceed. 

STATEMENT OF DAVID J. BARRON, PROFESSOR OF LAW, 

HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS 

Mr. BARRON. Chairman Feingold and members of the Committee, 

thank you for inviting me to address the constitutional question 

that is the subject of this morning’s hearing. 

As Chairman Feingold mentioned, from 1996 to 1999 I served as 

an attorney advisor in the Office of Legal Counsel of the United 

States Department of Justice. I now teach at Harvard Law School 

and write about, among other things, presidential power, both the 

need for its vigorous protection and the extent to which it can and 

should be limited. 

The subject of this hearing is clearly a momentous one. I have 

supplied the Committee with written testimony that reviews relevant legal precedents dating back from the time of the founding 

and running through up continuously more recent history that, in 

my view, demonstrates an unbroken pattern consistent with the 

constitutional text of a recognition of the broad powers of the Congress to define the parameters, including the size, scope, and duration of a military conflict. Limits such as these have been adopted 

in every age, from the Quasi-War on France right up through the 

Vietnam War. They have been accepted by the Chief Justice of the 

United States John Marshall in connection with the Quasi-War on 

France and have been recognized as valid as well by the late Chief 

Justice William Rehnquist while he was serving as a legal advisor 

to the Nixon administration during the Vietnam War. 

In between those periods, limits on operations that have been 

even far more intrusive than the caps on troop levels, restrictions 

on increases in new troops, or prohibitions on continued funding for 

troops at all by a date certain have been imposed at other times 

in our history, including the Confiscation Acts during the Civil 

War, which President Lincoln accepted and did not challenge, restrictions on the location of troops in the Eastern Hemisphere in 

1940, as well as many other restrictions of this kind. In fact, one 

searches in vain across our history for a single case in which the 

Supreme Court has invalidated such a measure. And one searches 

also in vain for a single instance in which a President has defied 

a measure once it has been validly enacted. 

But rather than repeat the entirety of that review here, I just 

want to step back for a second and note that in considering a question of this magnitude, we are obviously not dealing with just a 

technical legal question in the ordinary sense. We are dealing with 

a constitutional question in the truest sense. The question put before us is one that is really about how we are constituted as a Government, committed to self-government and democracy, the rule of 

11 

law rather than the rule of men, and the diffusion and separation 

of powers rather than the concentration of authority in a single figure. 

In that sense, the review of the legal materials need to be reviewed through that larger lens and from the point of view of the 

constitutional structure as a whole. And from that perspective, I 

think the question admits of really just one answer, which is that 

Congress does possess the power that the question asks as to 

whether it possesses. 

Under our structure of Government, there is no doubt that a 

massive use of force involving more than 100,000 troops continuing 

for years at a time would require congressional sanction at some 

point. That is true not only because that was the constitutional 

plan, but because the text of the Constitution gives the appropriation power to Congress. No action could proceed for that long without appropriations providing for it. The Framers knew this and the 

Framers intended it. 

The legal question that arises, though, is that when a war continues for some time, undoubtedly circumstances may change, and 

that may lead people to reassess the authority once willingly given 

and to reassess the utility of continuing with the same kind of authorization that was earlier granted gladly. 

When that happens, the question is: Can Congress do anything 

in response to that change and the reassessment that is occurring 

within the country? Or is it to stand by as a spectator, not by 

choice but by operation of the constitutional plan itself? 

From that perspective, looked at that way, given all we know 

about the Framers’ concern about unchecked power, given all we 

know about their desire for Congress to have a role in the authorization of such a massive use of force at the beginning, I think to 

ask whether the constitutional plan permits the Congress, in consideration of the changes that have occurred, to decide to act upon 

that reassessment admits of only one answer. How could it be that 

our constitutional plan would not give Congress that power? 

Inevitably, answering the question the way that I suggest it 

should be answered will raise some to say, ‘‘Well, that invites 

micromanagement of the war.’’ Whatever the outer reaches of 

micromanagement might be, to content that a cap on troop levels, 

a prohibition on increases in new troops, or a prohibition on the 

use of funds to continue military operations altogether amounts to 

micromanagement, when the first serious reconsideration of authorization given years before trivializes, in my view, the nature of 

what Congress is at the present time contemplating. And I am 

happy to get into the details of what maybe those outer limits 

might be, but I think it is very important to recognize, given all 

that we know about the Framers’ understandings and all the precedents that we have had over 200 years of the Nation’s history of 

engagement in military conflicts, that it is clear that the measures 

being considered, as I understand them, fall well within the substantial zone of authority that Congress possesses. 

Thank you. 

[The prepared statement of Mr. Barron appears as a submission 

for the record.] 

Senator FEINGOLD. Thank you very much, Professor Barron. 

12 

Our next witness will be Professor Robert Turner. After completing two tours of duty in Vietnam, Professor Turner attended 

law school at the University of Virginia. Now a professor at UVA, 

he co-founded the Center for National Security Law there and has 

published several books on the War Powers Resolution. He also 

contributed chapters to a law school casebook on national security 

law. Professor Turner served as national security adviser to Senator Robert Griffin in the mid-1970’s and worked at the Pentagon, 

the White House, and the State Department during the Reagan administration. 

Professor Turner, it is nice to see you again and you may proceed. 

STATEMENT OF ROBERT F. TURNER, CENTER FOR NATIONAL 

SECURITY LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

CHARLOTTESVILLE, VIRGINIA 

Mr. TURNER. Thank you, Mr. Chairman. I am delighted to be 

here. Let me just summarize some of the key points in my rather 

extensive written remarks. 

First of all, by vesting the executive power in the President in 

Article II, Section 1 of the Constitution, the Founding Fathers gave 

to that office the general management of our relations with the external world. I document in my prepared statement this was the 

view of George Washington, James Madison, Thomas Jefferson, 

Alexander Hamilton, Chief Justices John Jay and John Marshall, 

and many others. As Hamilton noted in his first Pacificus essay in 

1793, ‘‘The power of Congress to declare war was an exception out 

of the general executive power vested in the President,’’ and, thus, 

it was to be, I quote, ‘‘construed strictly.’’ 

Chief Justice John Marshall, a decade later in Marbury v. Madison, noted the Constitution had vested the President with important political powers ‘‘in the exercise of which he is to use his own 

discretion,’’ and the Chief Justice added, ‘‘Whatever opinion may be 

entertained of the manner in which executive discretion is used, 

still there exists, and can exist, no power to control that discretion.’’ And to illustrate this point, he noted the President’s control 

over the Department of Foreign Affairs. In the conduct of war and 

the conduct of foreign affairs, the President, in fact, is the decider. 

Having acknowledged the President’s vast and often unchecked 

powers over war and foreign affairs, we must also recognize that 

Congress has very important powers in this area, including the 

power to raise and support armies, without which the President 

has no army to command. It also has control of appropriations, but 

decisions involving the conduct of war, including where to move 

troops, whether to reinforce troops, whether to move troops from 

one hill to another are vested exclusively in the President. And 

when Congress tries to control this power, either directly by statute 

or by conditions to appropriations, it becomes a lawbreaker. It violates the Constitution. The Authorization for the Use of Force in 

Iraq clearly was the equivalent to a constitutional declaration of 

war. The Bas v. Tingy decision in 1800 has already been referred 

to. 

Late last June, Justice Stevens in the Hamdan case quoted Chief 

Justice Chase’s remarks in Ex Parte Milligan, where he noted, 

13 

‘‘Neither can the President in war more than in peace intrude upon 

the proper authority of Congress, nor Congress upon the proper authority of the President. Congress cannot direct the conduct of campaigns.’’ And I would submit that is what we are talking about 

here. We are fighting a war, and we are talking about who can decide how many troops to apply and so forth. That is core presidential, exclusive authority. 

At the core of this authority is this absolute discretion on how 

to fight the war with whatever resources Congress has provided. 

Now, Congress certainly may refuse to provide new funds, refuse 

to provide new troops, refuse to provide new equipment and so 

forth. What it cannot do is use that power to indirectly seize the 

discretion of the President in how to fight the war. Legislators may 

refuse to provide the President new funds; otherwise, the only way 

legislators can control the Commander-in-Chief power is to run for 

office and be elected President. 

The Chairman noted the precedent of the statute in 1970 that 

cut off funds to Cambodia. I talk about that and also the cutoff of 

funds in the rest of Indochina in my prepared testimony. And I 

would conclude with a prudential consideration. Even if I am 

wrong, even if Jefferson and John Marshall are wrong, and Congress has this power, I would urge you to act very carefully in exercising this power. Have you considered the consequences of the 

1970 legislation? Congress authorized the use of force to protect 

Cambodia in 1964. Congress later cut funds for that purpose. As 

a result, we allowed the Communists to take control of Cambodia. 

As a result of that, according to the Yale Cambodia Genocide 

Project, 1.7 million people, 21 percent of the population of that 

country, were murdered by the Communists. Four years ago National Geographic Today had a story about the killing fields that 

noted, small children were picked up by their legs and ‘‘batered 

against trees’’ to kill them. That resulted because Congress prohibited the United States from fulfilling John Kennedy’s pledge that 

we would ‘‘oppose any foe’’ for the cause of freedom. 

What about emboldening the enemy? Let me just close with a 

reference to the Beirut situation in 1983. 

I followed that closely, and former Marine Commandant P.X. 

Kelley and I wrote an article about it in the Washington Post some 

years ago. Congress had this same kind of debate, and the White 

House said, ‘‘You are endangering our troops.’’ And P.X. Kelley, the 

Marine Commandant, said, ‘‘You are endangering our troops.’’ And 

Congress said, ‘‘Oh, no, no. This is free, fair debate.’’ And as a result, the Syrians said, ‘‘The Americans are short of breath,’’ and we 

intercepted a message from the terrorists saying, ‘‘If we kill 15 marines, the rest will leave.’’ And on the 23rd of October 1983, a terrorist truck bomb killed 241 marines, sailors, and soldiers because 

Congress had signaled the terrorists that if there are any more casualties, we can reconsider our vote and cut off the funds. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Turner appears as a submission 

for the record.] 

Senator FEINGOLD. Thank you, Professor Turner. 

14 

Our next witness will be Dr. Louis Fisher, who is a constitutional 

law specialist at the Library of Congress. I have benefited from his 

writings and his thoughts on many occasions. 

Before joining the Library of Congress, Mr. Fisher spent 36 years 

at the Congressional Research Service. During his time at CRS, he 

served as Research Director of the House Iran-Contra Committee 

in 1987. Mr. Fisher literally wrote the book on this issue, ‘‘Constitutional Conflicts Between Congress and the President,’’ one of 

more than a dozen books he has written. 

Mr. Fisher, it is an honor to have you before the Committee 

again, and the floor is yours. 

STATEMENT OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW, LAW LIBRARY, LIBRARY OF CONGRESS, WASHINGTON, D.C. 

Mr. FISHER. Thank you very much, Mr. Chairman. The purpose 

of my statement is to state that the Constitution not only gives 

Congress the authority but the duty and the responsibility to decide national policy, domestic policy, foreign policy, national security policy. That is why you are elected. 

The system of Government we have, as has been mentioned here 

this morning, is that we believe in the Constitution where the sovereign power is placed with the people, and they give you their 

power temporarily to discharge. And that is the system we have. 

It is a democratic, small-R republican system. The power is with 

the people, and you can revisit legislation any time you like. If you 

do not meet their needs, you may not be around very long. So you 

are a temporary custodian. You are a temporary custodian of the 

Constitution which, very importantly, includes the checks and balance system and the separation of powers system. We have that because the Framers did not trust in human nature. They were 

afraid of any concentration of power being abused. That is why we 

have our system. 

Now, when you passed the Iraq resolution in October 2002, you 

did not sign off and say the rest is for the President. Any statute 

that you pass, you have a duty to revisit it and recalibrate in light 

of new information. That is just the duty of the legislative branch. 

You have few restrictions on what you can do. The restrictions that 

exist are the kind of restrictions no one is thinking about, up this 

street but not down that street. I do not have any grounds for believing that the President has any special expertise or better judgment on whether to continue a war than the elected Members of 

Congress.The Framers put their trust in the deliberative process. 

You can look at Article I and Article II, and Article I obviously 

gives the lion’s share of the war power to Congress. My statement 

explains why that is so; that is, the Framers looked at the British 

models—Blackstone and John Locke—and they would have given 

the executive all the power over war and foreign affairs. None of 

those war prerogatives are given solely to the President of the 

United States. They are either given expressly to Congress, or they 

are shared between the President and the Senate. 

When you look at the Framers, their view of history was that executives over time, in their search for fame and glory, got nations 

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15 

ury. So that is why the power of initiating war was placed in Congress, and the President has certain powers of a defensive nature 

to repel sudden attacks. 

Now, about the Commander-in-Chief Clause. It is an important 

clause but not the way it is read today: one, it affirms unity of command. The unity of command means that the President is in charge 

of troops, but those troops can be controlled by Congress. The second very important part of the Commander-in-Chief Clause is civilian supremacy. The same duty that commanders have to the President, the President has to the elected representatives. So the Commander-in-Chief Clause does not get anyone anywhere. 

I mention in my paper, as others do, contemporary statutory restrictions. Now, when the elected Members of Congress decide that 

a war has declined in use or value and you want to revisit it, you 

can place various conditions on appropriations, change legislative 

language. That is up to you. You may decide in doing that that you 

want to move U.S. troops to a more secure location. So there is no 

issue here about not protecting our troops. 

The key question to me is for Congress to determine that the 

continued use of military force and a military commitment is in the 

Nation’s interest. That is the core question. Once you decide that, 

if you decide it is not in the national interest, you certainly do not 

want to continue putting U.S. troops in harm’s way. 

I don’t think when you are trying to decide that question that 

there is any help by saying that if you express an independent 

view, you are somehow emboldening the enemy. 

I want to end—a lot of people talk about the Steel Seizure case 

and the three categories and so forth. They miss what I think is 

Robert Jackson’s view at the end of his decision where he says— 

and this is the constitutional system we are talking about. He says, 

‘‘With all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that 

the executive be under the law and that the law be made by parliamentary deliberation.’’ 

Thank you. 

[The prepared statement of Mr. Fisher appears as a submission 

for the record.] 

Senator FEINGOLD. Thank you so much, Mr. Fisher. 

Our next witness will be Bradford Berenson. Mr. Berenson graduated from the Harvard Law School and clerked for Judge Silberman on the D.C. Circuit and Justice Kennedy on the United States 

Supreme Court. Mr. Berenson served as associate counsel to President George W. Bush from 2001 to 2003, where he focused on the 

relationship between the Congress and the executive. He is now a 

partner at Sidley and Austin. 

Mr. Berenson, thank you for making time to testify today. You 

may proceed. 

STATEMENT OF BRADFORD BERENSON, PARTNER, SIDLEY 

AUSTIN LLP, WASHINGTON, D.C. 

Mr. BERENSON. Thank you, Mr. Chairman. I appreciate the opportunity. I certainly think this is a valuable and important debate, 

nothing at all illegitimate or disreputable about it, and the quesVerDate Nov 24 2008 12:42 Nov 20, 2009 Jkt 053356 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53356.TXT SJUD1 PsN: CMORC
16 

tions are indeed very serious and, as Professor Barron said, very 

deep in that they address our structural Constitution. 

I am mindful of your admonition that we are here today to discuss law rather than policy, and that the question whether Congress should exercise whatever power it has is not the subject of 

the present hearing. I do, however, want to echo at the outset one 

of Professor Turner’s observations, which is that whatever constitutional authority the Congress does have to terminate a war, there 

are very important prudential considerations that need to be taken 

into account before it is exercised, even by those who feel most 

strongly that the war is a mistake. 

I would suggest that for a variety of institutional and political 

reasons, both domestically and abroad, the country is best off when 

the two branches are closely cooperating and consulting with one 

another on these matters and confrontations are not forced through 

legislation. 

That said, I think the constitutional scheme does give Congress 

broad authority to terminate a war. As I see it, there are three 

basic spheres: there is a sphere of exclusive congressional authority 

in the area of warmaking; a sphere of exclusive executive authority 

in the area of warmaking; and then by far the broadest and, in 

some ways, the most significant sphere is the sphere, as Senator 

Specter suggested, where the powers are shared in a particular 

way. 

Broadly speaking, the exclusive powers of Congress and the 

President are those that are enumerated in the Constitution, at 

least in my view. So Congress has the exclusive authority to declare war, to raise and fund the armies, and to prescribe rules for 

how to regulate and govern the conduct of those forces. But the 

President’s power as Commander-in-Chief is likewise exclusive, 

and any congressional statute that would usurp his command over 

our military forces would, in my view, be unconstitutional. The Supreme Court in Ex Parte Milligan, Chief Justice Chase, recognized 

Congress’ broad power to regulate the conduct of warfare, ‘‘except 

such as interferes with the command of the forces and conduct of 

campaigns.’’ That power and duty belong to the President as Commander-in-Chief. 

The outer boundaries of the Commander-in-Chief power are quite 

difficult to discern and raise a lot of difficult questions, as Professor 

Barron suggested. But, broadly speaking, I think the division is between tactics and military strategy on the one hand and broad 

questions of national policy on the other. The closer Congress gets 

to regulating the disposition of troops and the way in which they 

may engage the enemy, the closer it gets to trenching on the President’s power to command with that unity that Dr. Fisher described. 

On the other hand, the question of where in the world our troops 

may fight and who should be treated as an enemy of the United 

States and just how many of our national resources should be dedicated to that kind of a conflict I think is a proper subject for congressional regulation through the Spending Power and the Necessary and Proper Clause. 

It is important to recognize, though, that even in enacting a statute such as the one that Chairman Feingold suggested he is going 

to introduce shortly, there may be difficult questions of application. 

17 

I have not seen the details of the proposal, of course, but in my 

judgment, a statute which says as of 6 months from the date of enactment the United States shall no longer be engaged in hostilities 

in Iraq is presumptively constitutional. That would be, if it could 

be passed, presumably over the President’s veto, a constitutional 

statute and proper exercise of Congress’s authority to set this 

broad policy. It would be constitutional on its face. 

That does not mean, however, that it would be constitutional in 

every application. The President’s Commander-in-Chief powers, in 

my view, do give to him certain emergency authorities—to repel a 

sudden attack, to protect our troops in the field—that cannot be 

taken away by Congress even through a presumptively and facially 

constitutional statute. So in respect of the bill that Chairman Feingold proposes to introduce, if on the last day of that 6-month period 

our troops were attacked in force, and in order to protect them and 

to effect the redeployment safely, the President had to continue to 

order them to fight for a period of days or weeks after the 6-month 

deadline, I think the debate would be ill-served by suggesting that 

that is somehow an unlawful action by him. I think we do need to 

recognize that there is play in the joints and there are reserves of 

presidential constitutional authority that exist even in the shadow 

of constitutional legislation of that kind. 

Thank you very much. 

[The prepared statement of Mr. Berenson appears as a submission for the record.] 

Senator FEINGOLD. Thank you so much for your balanced testimony, and now our final witness is Professor Walter Dellinger. A 

graduate of Yale Law School, Professor Dellinger clerked for Justice Hugo Black on the United States Supreme Court. He headed 

the Office of Legal Counsel at the Department of Justice from 1993 

to 1996. During this time he advised President Clinton on the executive’s authority to deploy U.S. forces in Haiti and Bosnia. Professor Dellinger served as the Acting Solicitor General of the 

United States from 1996 to 1997, where he argued nine cases before the Supreme Court in a single term. He then joined the faculty 

of the Duke University School of Law and is also head of the Appellate Practice Group of the Washington office of O’Melveny and 

Myers. 

Professor Dellinger, thank you as well for joining us today, and 

you may proceed. 

STATEMENT OF WALTER DELLINGER, DOUGLAS B. MAGGS 

PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, 

DURHAM, NORTH CAROLINA, AND FORMER ACTING SOLICITOR GENERAL OF THE UNITED STATES 

Mr. DELLINGER. Mr. Chairman and members of the Committee, 

thank you. Mr. Berenson and I both bring an executive branch perspective to these discussions. We served in administrations of different parties, he in the White House and I in the Department of 

Justice. But I think we both recognize the limits that Congress 

may place on the President’s use of U.S. forces, and we both recognize that there may be urgent exceptions to those limits. 

The President does have the authority to command the troops, 

and I also believe that a President has a great deal of authority, 

18 

when Congress is silent, to act in the national defense and in behalf of national security. I think as a legal officer of the Government, I would be hard pressed to find that a presidential action 

taken in good faith to protect U.S. national security was ultra 

vires, was simply beyond his authority. 

The situation, however, is quite different when Congress has 

acted. When Congress has acted using its ample authorities set out 

at length in Article I of the Constitution, then the question is 

whether the act of Congress is constitutional or not. In this circumstance, the President as Commander-in-Chief I think has the 

authority to choose the sub-commanders to determine the tactics, 

to decide how to carry out the tasks to which the military has been 

assigned. But it is ultimately Congress that decides the size, scope, 

and duration of the use of military force, and this has been recognized by administrations of both political parties throughout our 

time. 

Robert Jackson recognized that Congress could validly say no 

U.S. troops may be stationed outside the Western Hemisphere, as 

they had in 1940 prior to Pearl Harbor. 

Assistant Attorney General William Rehnquist argued very forcefully that Congress does not have simply an all- or-nothing choice 

to declare war; Congress may limit, validly limit the President’s 

use of force. 

Now, here in this circumstance, the question is what powers a 

President should use, and I would like to note that it is not, by any 

means, clear to me that the appropriations power is what Congress 

may necessarily need to resort to. Congress may simply, in my 

view, directly legislate under the Necessary and Proper Clause in 

light of its other authorities without using the appropriations 

power. Indeed, I think if it tried to interfere with actual direct 

Commander-in-Chief exercises of the true functions of the Commander through the appropriations power, that would not be constitutional. But with or without the appropriations power, Congress 

can place limits upon the use of U.S. forces. 

Now, I think it is important to recognize, however, that Senator 

Feingold’s proposal is not one that, as I read it, cuts off funds to 

anyone. It is a proposal that calls for redeployment. It cites the 

spending authority, though I think it could also do so directly, but 

there is a long tradition of using the appropriations authority. 

Under that proposal, as I read it, Mr. Chairman, there would not 

be one penny less for salary of the troops. There would not be one 

penny less for benefits of the troops. There would not be one penny 

less for weapons or ammunition. There would not be one penny less 

for supplies or support. Those troops would simply be redeployed 

to other areas where the armed forces are utilized. And that, it 

seems to me, is fully within the authority of Congress to do. 

Finally, the prudential questions that are raised about whether 

it has an adverse effect on morale when the President and the Congress take different views. When the President intends to use or to 

increase or enhance the use of military force, and Congress is of 

the view that that is not within the national interest, there is a 

discord and a dissonance. But you first have to ask who has the 

primary constitutional authority. If it is in the President to determine where to go to war and how to go to war and how long to 

19 

go to war, then Congress—we put the question to Congress. Why 

are you undercutting that? But if it is true, as I think it is, that 

the Constitution gives this fundamental choice to the Congress of 

the United States, then it is appropriate to ask what justification 

would a President have for using forces in circumstances where it 

is known that the Congress elected by the people is opposed to that 

use of force. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Dellinger appears as a submission for the record.] 

Senator FEINGOLD. Thank you, to you and the whole panel. The 

panel did just an excellent job and was very respectful of the time 

limits and you got right to the point of the hearing, to the point 

where a couple of the questions I was going to ask have already 

been clearly answered on the record. 

We will now turn to questions for the witnesses. Each member 

of the Committee will have 5 minutes for the first round of questions. Before I begin, I would like to place the following items in 

the record of the hearing: a letter from Professor Dellinger dated 

January 17, 2007; a Constitution Project reported titled, ‘‘Deciding 

to Use Force Abroad: War Powers in a System of Checks and Balances’’; and two Congressional Research Service reports—one titled 

‘‘Congressional Use of Funding Cutoffs Since 1970 Involving U.S. 

Military Forces in Overseas Deployments,’’ and another titled ‘‘Congressional Restrictions on U.S. Military Operations in Vietnam, 

Cambodia, Laos, Somalia, and Kosovo: Funding and Non-Funding 

Approaches.’’ Both of those are dated January 16, 2007. And also 

a statement from the Chairman of the Committee, Senator Leahy. 

Without objection, they will be included in the record. 

Let me begin with my round. Mr. Fisher, why did the Framers 

believe it was so important to place the purse and the sword in the 

hands of different branches of Government? 

Mr. FISHER. Well, the quote you had from James Madison said 

that the person who is to decide the scope of the operation, the 

Commander-in-Chief, cannot be the same one to decide whether to 

continue the operation. That is a separate judgment made by Congress. So Congress always had control up to—the first time we had 

an exception was 1950 with the Korean War, the first time a President went to war without coming to Congress. So for 160 years, in 

the offensive use of troops, all Presidents, all courts, all Congresses 

understood that was a legislative judgment, not for the President. 

Very limited powers. Only in the last 50 years have we gotten the 

notion that Presidents can go to war on their own and bypass Congress and go to the UN Security Council or go to NATO members. 

Senator FEINGOLD. That seems to suggest that the Congress does 

not just have the right but the responsibility to provide a check on 

the executive branch and to use its power to fix the failed Iraq policy, doesn’t it? 

Mr. FISHER. It has the responsibility, and you are the custodian 

of the public power. You are the ones to make sure that when the 

people vote—that is why we have elections. You are the one to 

make sure that that public will is respected and carried out. The 

power is much more in Congress in protecting the democratic system than it is on the President. 

20 

Senator FEINGOLD. Thank you. 

Professor Dellinger, you have in the past been a strong proponent of presidential power. For example, as you explained in 

your testimony, at the Justice Department you argued that Congress did not have the power under the Constitution to prevent the 

President from putting U.S. troops under United Nations command. Yet here today you have testified that you believe Congress 

has any number of options legally available to it to end or constrain the Iraq war and that the President would be required to 

comply if Congress took that action. Why does someone like you 

who has worked in the executive branch and who has advocated for 

presidential authority in related areas nonetheless believe that 

Congress can cut off funds for the Iraq war or otherwise limit the 

scope and duration of the war? 

Mr. DELLINGER. Mr. Chairman, I do believe that the Commander-in-Chief Clause of the Constitution confers authorities on 

the President with which the Congress may not interfere, for example, the selection of sub-commanders or those whom the President 

will put in charge of the troops, I do not think Congress has any 

power to undercut that. To say that funds are appropriated but 

only if General Smith is placed in command by the President would 

not be a constitutional use of Congress’ authority. 

But I think throughout our history we have recognized that Congress may place limitations on the duration and scope. For example, I issued the opinion that the President did have the authority 

to send 20,000 U.S. troops into Haiti. But we acknowledged that 

we were fully complying with a set of congressional limitations that 

the Congress has passed that were preconditions to the use and deployment of U.S. forces into Haiti. And we also recognized in the 

Haiti opinion—it is an opinion of the Office of Legal Counsel, and 

I believe it is cited in some of the testimony. We also said in that 

opinion that the President’s authority to deploy U.S. forces around 

the world without advance congressional authorization assumes the 

absence of limits imposed by Congress. And there is a large constitutional issue over the fact that a President, I think, has large 

inherent powers, but once Congress has acted, then the scope of the 

President’s power is quite different. And then the only question is: 

Is the act of Congress unconstitutional? 

Senator FEINGOLD. Thank you. 

Mr. Fisher, it has been discussed already that there are a number of historical examples in which Congress has wielded its power 

to end war by cutting off funds and thereby bringing troops home, 

including the Vietnam War. In fact, I understand there were a 

number of efforts to end the Vietnam War before the legislation 

that was ultimately successful in terminating funding became law 

in 1973. 

Can you explain a little bit more the steps that Congress took 

in the context of the Vietnam War and the ultimate outcome? 

Mr. FISHER. Well, the cutoff in funds, of course, came in 1973. 

It was interesting, I thought, in 1971 there was what was called 

the Mansfield amendment. It placed limitations on what could be 

done in Southeast Asia. It went to President Nixon, and he signed 

it, and in the famous signing statement we hear about, he says, 

‘‘That is not the policy of this administration.’’ Remarkably, it got 

21 

into court a year later, and a Federal judge said, ‘‘No. That is the 

policy of the United States.’’ It is in a public law. The policy of the 

United States is what is in the statute, not in what the President 

says. 

So even there, in the middle of the Vietnam years, Federal courts 

recognized that Congress by statute, when it is signed into law, can 

limit the President. 

Senator FEINGOLD. Thank you very much. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

There have been several mentions in the record that the issue of 

congressional debate is undercutting the troops. I do not think anybody has gone quite so far as to say that we are aiding and abetting the enemy, but that issue has been raised. 

I am pleased to note that President Bush himself in the State of 

the Union said, ‘‘Such debates are essential when a great democracy faces great questions.’’ And Professor Dellinger raises the 

issue as to whether there is an adverse effect on the morale of the 

troops. 

There have been some interesting polls taken as to how the military personnel feel about the war. And on December 29, 2006, just 

exactly a month ago, a poll done by the Military Times showed that 

only 35 percent of the military members polled this year approved 

of the way President Bush is handling the war, while 42 percent 

disapproved. Forty-one percent of the military said the U.S. should 

have gone to war in Iraq, down from 65 percent in 2003. That 

raises a question in my mind as to whether the military does not 

approve of questions being raised by Congress and a recognition 

that there are open questions here which have to be decided in a 

democracy. 

The election results are a very forceful statement as to how the 

people of America feel. I think there is no doubt that those results 

reflected dissatisfaction with the war in Iraq. Certainly that was 

my sense in traveling through Pennsylvania and other places, and 

my colleagues in the Congress have expressed a similar point of 

view. 

Professor Turner, you have been the most explicit advocate of 

presidential authority. Do you find any problem with the kind of 

debate we are having or with the resolutions which have been introduced even by the President’s harshest critics, resolutions of disapproval? 

Mr. TURNER. It is a very good question. As a constitutional matter, obviously the debate is legitimate. You know, I do not think 

you can argue that. 

There is an important prudential issue here, and that is—and I 

used to teach U.S. foreign policy, and I teach a seminar still today 

on War and Peace, so I am getting a little bit out of— 

Senator SPECTER. Come to the question. I only have 5 minutes. 

Mr. TURNER. Yes, sir. The concern is—I can tell you as a soldier 

in Vietnam, there were a lot of morale problems because of the criticism back home. The concern is our enemies know they cannot 

beat us militarily. Their biggest hope is we will lose our will, and 

the concern is, as we saw, I think, in Beirut, that if they see Congress threatening to pull the plug, they are going to say we have 

22 

to kill more Americans to encourage Congress to do that. And I 

think that is exactly what happened in Beirut. 

Senator SPECTER. So you think it does hurt morale. 

Mr. TURNER. I think it does hurt morale, but that may not overcome the positive value. This is something you have to judge, you 

know, the contribution of the debate, is it going to change the— 

Senator SPECTER. Well, my judgment is that it is the price of democracy. 

Mr. TURNER. That may well be true, sir. 

Senator SPECTER. That there is no doubt that the Congress at 

least has colorable authority, if not 50 percent authority, or shared 

authority to some extent. 

Professor Dellinger, I see you waving your hand, but I have another question for you, and I want to approach a little different 

subject. Where the electorate has spoken forcefully, or at least my 

interpretation of the vote in the election was a very positive repudiation of the Iraq policy, and we live in a representative democracy. 

We have a Republic and we are going to keep it, notwithstanding 

Frankel’s interdiction. 

We also, I think, observe a principle that leadership sometimes 

requires disagreeing with public opinion and taking a different 

stand, that that is the cost of leadership. Perhaps President Truman is the best example of that. 

And my question to you is: Where the electorate has spoken and 

there is so much sentiment in Congress, is there a heavier burden 

on the President to establish the wisdom and efficacy and superiority of his program than if the electorate had not spoken and Congress has not expressed itself? 

Mr. DELLINGER. Senator Specter, I do believe that the Constitution is structured so that the judgment of the people can play a 

role, and here the country has elected a third of the Senate and all 

of the House since the last time it chose a President, so that they 

do reflect a fresher judgment of the people. 

You reference my raising the question about morale with this debate, and I did want to make clear that I believe the debate is essential— 

Senator SPECTER. Come to the question of morale after you answer my question. Is there a heavier burden on the President— 

Mr. DELLINGER. Yes, I do think there is a burden when the country has spoken on the President— 

Senator SPECTER. Is there a heavier burden on the President to 

show the efficacy of his program in the face of this kind of popular 

and congressional disapproval? 

Mr. DELLINGER. I think the answer to that question is clearly yes 

with respect to both because we want the use of U.S. force to reflect a consensus. 

Now, the debate is essential in that once we are engaged in hostilities, I think it is generally accepted that Congress has the authority to limit or end those hostilities. That means there has to 

be a discussion about whether to do that. And if you could not have 

that discussion, it would be a system set up for a perpetual war, 

because you could never discuss whether and how to end it. And 

I would think that those who serve are entitled to expect that there 

is a continuing assessment of whether their service in that theater 

23 

of war is indeed vital to the national interest. They would hope and 

expect that that assessment would go on and would not be cut off 

simply when the war had started. 

Senator FEINGOLD. Thank you, Professor Dellinger. Thank you, 

Senator Specter. 

Now I would like to turn to somebody who has frequently and 

successfully dealt with these difficult issues throughout his career. 

Senator Kennedy. 

Senator KENNEDY. Thank you. Thank you, Senator Feingold, for 

chairing these enormously important hearings today. 

Let me ask the panel, Iran’s nuclear ambitions and support for 

international terrorism pose a threat to the stability in the Middle 

East and to our national security, and the question is how we respond to this challenge. The President said on January 10th that 

Iran has provided material support for attacks on American troops 

and that we would disrupt the attacks and destroy their networks. 

The next day we raided an Iranian Government office in Iraq. 

Last week, President Bush authorized U.S. forces in Iraq to kill 

or capture Iranian operatives inside Iraq. Yesterday, the President 

further raised the temperature by saying if Iran escalates its military actions in Iraq to the detriment of our troops or innocent Iraqi 

people, we will respond firmly. 

The U.S. recently sent an additional aircraft carrier battle group 

to the Gulf Region. This morning, the Armed Services Committee 

is holding a hearing on the nomination of Admiral Fallon, who 

would become the first naval officer to hold the Central Command. 

Some have read this activity as preparation for military action 

against Iran. I certainly hope that is not the case. 

The question, just quickly through the panel: Is the President required to seek authorization from Congress before using military 

force against Iran? 

Mr. FISHER. Let me give it a try. I think if there is some action 

that is a threat to U.S. soldiers, I think a President has the power 

to repel sudden attacks to protect U.S. troops. Otherwise, if it goes 

beyond isolated incidents like that, I think you are running into 

the purpose of the Iraq resolution, which when it came up to the 

Congress was of such a broad nature, it could have covered the 

whole Middle East, and Congress amended it to make sure it applied only to Iraq. So I think by statute, by legislative policy, you 

have confined the President to Iraq. 

Senator KENNEDY. I am interested either in another comment on 

that or what actions can Congress take now to ensure the President does not take us into war in Iran without congressional authorization. Professor Barron, maybe you could answer either both 

of them or take the second part. 

Mr. BARRON. I think the question of whether the President could 

right now initiate any actions against Iran, I think the proper way 

to think about it is what authority does he have under the current 

Iraq authorization statute which would require some close consideration. 

There is some writing on this from, again, William Rehnquist 

when he served President Nixon with respect to the President’s inherent power to go into Cambodia when there was no statutory 

limitation imposed at the time. I think it was quite clear under 

24 

Rehnquist’s view, though, that a statutory limitation on the exercise of such authority would be constitutionally valid. So I think 

the legal question then comes to there is no doubt Congress could 

restrict him from going and widening the war, not just in terms of 

the amount of troops used but in the geographic area covered, and 

the only issue is whether Congress has, in effect, already done so 

by virtue of the limitations and bounds of the Authorization to Use 

Military Force in Iraq that it has already enacted. 

Senator KENNEDY. Yes, Professor Turner? 

Mr. TURNER. Senator, let me just make a nuanced point on this. 

John Hart Ely, in his War and Responsibility, made the point that 

after Congress declared war against Germany, FDR did not need 

a new declaration of war to go into North Africa after the German 

forces. Going into Cambodia I think was perfectly legal because the 

North Vietnamese had taken over the whole border area of Cambodia, and so there are difficult lines to draw here, but I could see 

a situation in which Iran became involved in the Iraq war where 

the President would be able to use force. I hope he does not, and 

I think in terms of launching a major war against Iran he should 

get and would need an AUMF for Iran. But there is some area in 

there where I think he could act. 

Senator KENNEDY. Well, I want to just hear from others here. If 

Congress passed legislation requiring the President to seek authorization from Congress before using military force against Iran, 

would the President be obliged to seek such authorization before 

launching military action? I will add that to the pot, too, because 

I am going to run out of time here. 

Mr. BERENSON. Senator Kennedy, I think the questions that you 

are posing fall into the sphere that I spoke about before as the 

sphere of shared powers. And it is important to recognize that for 

very important institutional reasons, the President is the first 

mover and the prime mover in this area of shared powers. That has 

to do with the fact that unlike Congress, which needs to go through 

an often time- consuming and difficult legislative process, a process 

that can sometimes be stymied, the President has the ability to receive information in real time to act to protect the national security. 

So the President through the Vesting Clause, through his executive authority, in the absence of legislation to the contrary by the 

Congress, I think unquestionably would have authority to engage 

Iran in hostilities. Whether in defense of our forces inside the borders of Iraq, or if he decided that we needed to do something to 

address Iran’s nuclear facilities, I do not think he would be acting 

outside the scope of his constitutional authority. 

That said, for major military actions most Presidents have recognized the importance of coming to Congress as a political and practical matter. It is certainly unwise, albeit not unconstitutional, to 

try to engage in large-scale hostilities or engage a new enemy in 

warfare without public support, and the best way to ensure that at 

the outset is, of course, to come to Congress. 

Senator KENNEDY. My time, Mr. Chairman—Mr. Dellinger? 

Mr. DELLINGER. Yes, Senator Kennedy, briefly. I agree with Mr. 

Berenson’s statement. I believe that the President does have the 

authority to introduce U.S. troops into situations of hostilities, inVerDate Nov 24 2008 12:42 Nov 20, 2009 Jkt 053356 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53356.TXT SJUD1 PsN: CMORC
25 

cluding in Iran, in the absence of congressional limitation as long 

as the anticipated scope and duration does not amount to a war. 

I do not believe he has the authority to send 500,000 troops into 

Iran, but he does have the authority to deploy U.S. forces in hostilities. And, indeed, the War Powers Resolution recognized this. It 

says when the President introduces troops into situations of hostilities in the absence of congressional authorization, he has to report and take other steps. But it does recognize that. 

That said, it is also clear that Congress can impose limits, either 

before or after the fact, on the size, scope, and duration of that. But 

I do believe that is a consistent executive branch position that the 

President has the authority to deploy U.S. forces into hostilities 

when Congress has not spoken to the question. 

Senator KENNEDY. Thank you. 

Thank you, Mr. Chairman. 

Senator FEINGOLD. Thank you, Senator Kennedy. 

Senator Hatch. 

Senator HATCH. This has been an extremely interesting panel to 

me, and I think all of you have done rather well. I agree with Dr. 

Fisher that Congress has almost unlimited powers under our Constitution to do just about anything it wants if it can, and that is 

a very difficult thing for Congress sometimes. 

But let’s come back to the Iran situation. If it is brought to the 

attention of the President that Iran is sending materials, weapons, 

IEDs, and a lot of other things to kill our soldiers over there in 

Iraq, even if the Congress of the United States says we cannot go 

to war with Iran, would the President have a right to remedy that 

situation? Mr. Turner, Professor Turner? 

Mr. TURNER. In Marbury v. Madison, John Marshall said that 

‘‘an act of the legislature repugnant to the Constitution is void’’. 

The conduct of military operations is clearly an exclusive presidential power. That is why I am arguing that things like moving 

troops around, bringing in reinforcements, that is a presidential decision that cannot be placed else where. Trying to tie the President’s hands in the conduct of the operation, that is an unconstitutional act, it is void, and it has no effect. 

Senator HATCH. Has any court ever held—has the Supreme 

Court ever held that? 

Mr. TURNER. That is an interesting question. 

Senator HATCH. I am interested in Professor Barron’s comments 

about the Civil War, Lincoln, and some of these other instances 

where the President acquiesced to what the Congress had done, but 

was it tested before the Supreme Court? 

Mr. TURNER. There are so few cases— 

Senator HATCH. If it was tested, would the decision have gone 

otherwise? 

Mr. TURNER. There are so few cases where Congress has tried to 

do this, I doubt it has been tested. But it— 

Senator HATCH. I do not know of any test, but maybe there has 

been. Professor Berenson. 

Mr. BERENSON. In the Prize cases, which arose in the context of 

the Civil War, the Supreme Court recognized that President Lincoln had the power and, indeed, the obligation to respond to the 

Confederacy’s rebellion militarily. 

26 

Senator HATCH. I agree that our courts like the Prize cases. They 

back up the President. Now, Professor Barron has said Congress 

could do almost anything it wants, and so has Professor Fisher. I 

am not quite as sure as they are. 

Mr. BARRON. You are right that the Confiscation Acts that are 

referred to by President Lincoln did not reach the Supreme Court 

of the United States. There was a huge issue as to whether he 

would veto them on grounds that it violated the Commander-inChief power, and though he did assert the veto power, he decided 

not to assert the Commander-in-Chief objection, apparently because he himself believed it was not ultimately unconstitutional to 

act. But you are right to say that we do not have a clear decision 

on it. The best we have, as far as the Supreme Court’s own view 

on the enforceability of a limit on the use of force, is the Little v. 

Barreme case, in which there was an issue from a military commander as to the ability to seize a ship in foreign waters. The claim 

of the commander was that he was acting on the direct orders of 

the President as Commander-in-Chief; and notwithstanding that, 

Chief Justice Marshall concluded that order was legally invalid because it was beyond the scope of the authorization as limited by 

Congress as to which ships could be seized. 

So I think that is the best we have got on it, and I think that 

just on the other side I would say there is certainly no case we 

have of a President either defying such a restriction or the Supreme Court upholding such a restriction, once defied. 

Senator HATCH. Professor Turner? 

Mr. TURNER. Yes, it is very important to distinguish between internal and external affairs; but also, Congress does under Article 

I, Section 8, have certain expressed grants of powers that are exceptions. One of those is the right to ‘‘make rules governing captures on land and water.’’ So the Barreme case involved an area 

where Congress had expressed power, and I would not apply that 

to cases involving the President’s general Commander-in-Chief 

power. 

Mr. BERENSON. I agree with Professor Turner’s reading of the 

Barreme case, and the other thing I would point out is that, although we do not have a direct precedent on point in relation to 

the conduct of military operations, we do have precedents in analogous circumstances like Myers, in which the Supreme Court has 

held that congressional legislation which intruded upon a presidential power was invalid—in that case, the President’s power to 

remove Cabinet officers, which is not granted to him explicitly in 

the Constitution, but is instead an implicit adjunct to his appointment power. 

Senator HATCH. Well, I think that is one of the points I am trying to make. 

Dr. Fisher and then Professor Dellinger, my time is about up, 

but we will listen to both of you. 

Mr. FISHER. Yes, I think on the Civil War issue, that was the 

greatest— 

Senator HATCH. One of the things about you, Dr. Fisher, I have 

almost got the impression that you think there is nothing Congress 

cannot do. I do not quite agree with that. 

27 

Mr. FISHER. Oh, no. I think there are some things that Congress 

cannot do. 

Senator HATCH. I hope so. 

Mr. FISHER. But on the Civil War precedents that people spoke 

about here, that was the greatest emergency we ever faced, and 

Lincoln did take, which I think is true, certain emergency powers. 

He recognized that he had gone outside his own powers and exercised those belonging to Congress, and he came to Congress to get 

authority. On the Prize cases, I think it is very important to remember that what Justice Grier upheld there were presidential 

powers in a domestic emergency, not going to war against another 

country. Even the attorney for the White House, Richard Henry 

Dana, Jr., said exactly the same thing. Going to war outside the 

United States is a congressional power. 

Senator HATCH. Okay. Professor Dellinger, do you care to comment? 

Mr. DELLINGER. Yes. Senator Hatch, the October 16, 2002, resolution— 

Senator HATCH. Now, I might add, knowing you as well as I do, 

you have not argued really forcefully for the President so far. I 

would like to hear it a little bit stronger. 

[Laughter.] 

Senator HATCH. I am just kidding. Go ahead. Sorry to interrupt. 

PROTESTOR. He is under oath. 

Senator HATCH. He is under oath. That is a good comment. 

Senator FEINGOLD. Mr. Dellinger. 

Mr. DELLINGER. The resolution of 2002 is quite broad, quite 

broadly worded, and if the President determined that Iran was facilitating or making the job being done in Iraq more difficult or facilitating it, that resolution has fairly ample authority. It is not 

geographically limited, and the President is authorized to use— 

Senator HATCH. What if it did not? What if it did not have broad 

authority, that resolution? 

Mr. DELLINGER. I think the President has inherent authority to 

act in the absence of congressional limitation, and here I think 

even you could—the President could invoke the 2002 authorization 

if the use of force against Iran were necessary to facilitate the defense against the continuing threat posed by Iraq. The resolution, 

rightly or wrongly, I just would have to note that it is quite unrestricted in the authorization it gives the President, which is why 

I think it is appropriate for the Chairman to say it is time for us 

to revisit the authority that is conferred and to reconsider it now. 

But it would be a basis a President can cite. 

Senator HATCH. Thank you, Professor. 

Senator FEINGOLD. Thank you, Senator Hatch. 

Senator Durbin. 

Senator DURBIN. Thank you very much. And so most of this debate has been over how Congress can legally, constitutionally limit 

the authority of a President to wage a war once the war is underway. The resolution, which Professor Dellinger and others have alluded to, which passed in October of 2002, premised the actions of 

the President on three things: the presence of weapons of mass destruction, which did not exist; and the activities of Saddam HusVerDate Nov 24 2008 12:42 Nov 20, 2009 Jkt 053356 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53356.TXT SJUD1 PsN: CMORC
28 

sein in repressing the people of his country and threatening his 

neighbors; and as we all know, Saddam Hussein no longer exists. 

So let me ask you, when you read this resolution today, is there 

anyone among you who believes that what we are currently doing 

in Iraq is outside the scope of power and authority granted to the 

President? 

Mr. BARRON. Senator Durbin, the way I think I would answer 

that is that even if reading the terms of it would lead one to conclude, totally reasonably, that what is happening now is beyond 

what was contemplated there and is outside that authority, the fact 

of the continued appropriations on behalf of the action to this date 

couldn’t be ignored in interpreting how best to understand that 

statute now. So I do not think there is a legal problem with what 

is now happening as far as the authority to be there, given the appropriations that support it. But that, of course, I think is partly 

what has prompted the hearing, which is that so long as the appropriations continue, in light of an authorization which seems to have 

actually contemplated quite different circumstances, there is the 

suggestion that nothing has really changed, even though it may be 

that many people in the Congress and the country as a whole believe quite a lot has changed, raising the legal question of what can 

Congress do then to revisit those terms in light of its new understandings. 

Senator DURBIN. So are you suggesting that our appropriations 

process is, in fact, de facto a reauthorization of the President’s authority? 

Mr. BARRON. I think any executive branch lawyer would advise 

the President to that effect, and I think it would be a quite legitimate argument and one that has precedent as to how other executive branch administrations have interpreted appropriations authority. 

Senator DURBIN. Any other thoughts, Dr. Turner? 

Mr. TURNER. Senator, the Supreme Court has said that appropriations can provide authority. I think it was in the Prize cases 

they talked about there is no declaration of war. That may not 

have been—but also in the AUMF in October of 2002, there are references to promoting democracy and the rule of law, I think references to human rights. I may be wrong on that, but my recollection is at least in the whereas clauses, it is not just WMD but it 

is also the welfare of the people. And I would think that it would 

be a reasonable—that is, like in domestic law, there is no duty to 

rescue, but there is a duty, once you try to rescue through a competent job and in the middle of the operation, going in there to help 

the people of Iraq, which was obviously our goal, you know, to say 

now we are going to walk away, we have knocked all the beehives 

down in the room and we are going to go home and let you guys 

sort it out, I think, you know, the President does have some area 

here. If Congress were to say you cannot do this in a constitutionally legitimate way, that would control. But I do not think it 

can do that if it is interfering with the actual command decisions 

like reinforcing troops. That to me is so core Commander-in-Chief 

that Congress cannot touch it. You can deny him new troops and 

new money. 

Senator DURBIN. Mr. Fisher. 

29 

Mr. FISHER. On appropriations, in the Vietnam years, there were 

many cases, and at first judges said, well, Congress appropriated 

money. It looks like they endorsed the policy. Later, judges understood that because you fund a program maybe out of pity or piety, 

that is not an endorsement of the program, and they were instructed that policy is made in the authorization committee, not 

the appropriation committee. So I would raise some questions 

about that. 

I think on the Iraq resolution of 2002, whatever was assumed at 

the time based on the information, you are fully empowered now, 

based on your own understanding today, as to how to change and 

restrict military action any way you want to. You are not locked 

in by 2002. 

Senator DURBIN. Let me give you one example: Somalia, a controversial situation, leading to the Defense Appropriations Act of 

1995, fiscal year 1995. It prohibited the use of funds for the continuous presence of U.S. forces in Somalia except for the protection of 

U.S. personnel after a certain date. Is there anyone here who believes that that was outside the scope of the constitutional authority which Congress has? 

Mr. FISHER. Just one point on that. That was a fine statute because it said not only no more appropriations, but that you do not 

go back in until you come back to Congress and get authorization. 

That is the Somalia statute. 

Senator DURBIN. Is there anyone here who believes that that was 

inappropriate? 

[No response.] 

Senator DURBIN. Well, it seems—I do not know how much time 

I have left. Very little, I am sure. It seems to me that one of the 

elements here that is at play that we have not spoken about is a 

very different view of the Presidency and the White House. And I 

assume most White Houses have a different view than the Congress does. But Mr. Yoo, for example, in his famous memo now 

about executive power talked about the plenary powers of the 

President. Does anyone here subscribe to his views on the plenary 

powers of the President in the midst of war? 

[Laughter.] 

Mr. TURNER. I would rather not just endorse Professor Yoo, but 

it is very clear the President does have some plenary powers. Military command is a plenary power, and it is also clear, I think, at 

least if you accept all three Federalist authors—along with Washington, Jefferson, Marshall—all of them argued that by granting 

the executive power, as that term was understood by Locke and 

Montesquieu and Blackstone, it included the general control of the 

Nation’s external intercourse. And, for example, the Supreme Court 

has said in Curtiss-Wright, ‘‘Into the field of negotiations the Senate cannot intrude. Congress itself is powerless to invade it.’’ 

So to the extent you are passing laws telling the President what 

he can or cannot negotiate or telling him how to fight a war— 

Senator DURBIN. How about the duration and scope of war? 

Mr. TURNER. In terms of how to fight it. Now, in terms of— 

Senator DURBIN. Duration and scope. 

Mr. TURNER. Duration and scope, it is an iffy issue. 

30 

You have got to draw—you know, drawing narrow lines is hard, 

but you have some power in that area, clearly. 

Senator DURBIN. Was the Somalia action by Congress, do you 

think, inappropriate and unconstitutional? 

Mr. TURNER. I would rather hold judgment on that and look at 

it more carefully. I think there have been some of these—if it is 

a situation that does not involve a need for a declaration of war, 

the power of Congress is limited. Again, as Hamilton said in 

Pacificus I, the power of Congress to declare war is an ‘‘exception’’ 

out of the general executive power grant, and thus should be ‘‘construed strictly.’’ So, I think most of the—or many of these legislative powers ought to be viewed as vetoes. Jefferson referred to 

them as ‘‘negatives.’’ The President cannot appoint the Secretary of 

Foreign Affairs without the approval of the Senate— 

Senator DURBIN. I would like to let Professor Dellinger say a 

word before— 

Mr. TURNER. Go ahead. 

Mr. DELLINGER. Just very quickly, Senator Durbin. The point 

you make that the predicate for the resolution authorizing force in 

2002, the predicates of the regime of Saddam Hussein and the suspected weapons of mass destruction are gone, shows how vital it is 

in carrying out the constitutional function of the Congress to have 

this debate and discussion, because the question of whether U.S. 

forces should be used in a different situation for different goals and 

different purposes is one that I think you owe it to the families and 

those who serve and to the country generally to have that debate 

and see is it now in the vital interest of the United States to do 

that. 

[Applause.] 

Senator FEINGOLD. I would like Professor Barron to respond to 

Senator Durbin’s question. 

Mr. BARRON. Since you have raised the general issue of plenary 

power of the President, I thought it—we are saying, as someone 

who worked in the executive branch advising the President, I know 

Professor Dellinger did that, Mr. Berenson did that, Professor Turner did that. Many people on the panel come with a quite expansive and robust view of presidential power. In my view, the assertion of this plenary power that you referred to has given presidential power a bad name, and it has seriously undermined the 

ability of people to convince the public that there are reasons for 

the President to have substantial authority because it has been asserted so wildly in some many different contexts, from the interrogation context to now the claim that even as to revisiting the predicates of a war authorized years before, Congress is without power 

to have any say as to what it should be. 

Senator DURBIN. Mr. Chairman, thank you for this long overdue 

hearing. 

Senator FEINGOLD. Thank you, and if there are no further comments from my colleagues, after a few concluding remarks I will 

bring this hearing to a close. 

This hearing has been extremely illuminating, and a number of 

my colleagues have commented to me privately how much they appreciate the job you have done here. I thank our witnesses for attending and my colleagues for participating. The hearing record 

31 

will remain open for 1 week for additional materials from other 

scholars or interested citizens or organizations to be submitted. 

Written questions for the witnesses must also be submitted by the 

close of business 1 week from today, and we will ask our witnesses 

to respond to those questions promptly so we can complete the 

record. 

It is clear that this administration took the country into war on 

a fraudulent basis, with the President insisting we had no other 

option but to preemptively attack Iraq. Now, 4 years into the war, 

we are still in Iraq, and the President insists that we have no other 

option but to stay, with no end in sight. As long as this President 

goes unchecked by Congress, our troops will remain needlessly at 

risk and our national security will be compromised. 

Today, we have heard convincing testimony and analysis that 

Congress has the power to stop a war if it wants to. The President— 

[Applause.] 

Senator FEINGOLD. The President has no plan for ending the mission in Iraq. Worse still, his Iraq-centric policies have undercut our 

national security strategy worldwide. By finally setting a limit on 

our involvement in this misguided war in Iraq and backing up that 

judgment with the power of the purse, we can redeploy our troops 

from that country and begin to refocus on the global terrorist networks that do continue to threaten the United States. 

Let me just quickly dispel a few myths that have been generated 

as a result of the discussion about the use of the power of the 

purse. 

Some have suggested that if Congress uses the power of the 

purse, our brave troops in the field will somehow suffer or be left 

hung out to dry. This is completely false. Congress has the power 

to end funding for the President’s failed Iraq policy and force him 

to bring our troops home. Nothing—nothing—will prevent the 

troops from receiving the body armor, ammunition, and other resources they need to keep them safe before, during, and after their 

redeployment. By forcing the President to safely bring our troops 

and our forces out of Iraq, we will protect them, not harm them. 

Others have suggested that using the power of the purse is 

micromanaging the war. Not so. That is certainly not what I heard 

from this panel. It makes no sense to argue that once Congress has 

authorized a war it cannot take steps to limit or end that war. Setting a clear policy is not micromanaging. It is exactly what the 

Constitution contemplates, as we have heard today. Congress has 

had to use its power many times before, often when the executive 

branch was ignoring the will of the American people. It has done 

so without micromanaging and without endangering our soldiers. 

Some have argued that cutting off funding would send the wrong 

message to the troops. The Under Secretary of Defense even made 

this argument last week with respect to the nonbinding resolution 

now under consideration. I find these claims offensive and selfserving. Congress has the responsibility in our constitutional system to stand up to the President when he is using our military in 

a way that is contrary to our national interests. If anything— 

[Applause.] 

32 

Senator FEINGOLD. If anything, Congress’s failure to act when 

the American people have lost confidence in the President’s policy 

would send a more dangerous and demoralizing message to our 

troops: that Congress is willing to allow the President to pursue 

damaging policies that are a threat to our national security and 

that place them at risk. 

Any effort to end funding for the war must ensure that our 

troops are not put in even more danger and that important 

counterterrorism missions are still carried out. Every member of 

this body, without exception, wants to protect our troops and our 

country. We can do that while at the same time living up to our 

responsibility to stop the President’s ill-advised, ill-conceived, and 

poorly executed policies which are taking a devastating toll on our 

military and our national security. It is up to Congress to do what 

is right for our troops and for our national security, which has been 

badly damaged by diverting so many resources into Iraq. 

So as I said earlier, tomorrow I will introduce legislation that 

will prohibit the use of funds to continue deployment of U.S. forces 

in Iraq after 6 months from the enactment of that bill. This legislation will allow the President adequate time to redeploy our troops 

safely from Iraq, and it will make specific exceptions for a limited 

number of U.S. troops that must remain in Iraq to conduct targeted 

counterterrorism, training, and protection missions. 

From the beginning, this war has been a mistake, and the policies that have carried it out have been a failure. Congress must not 

allow the President to continue a war that has already come at 

such a terrible cost. By redeploying our troops from Iraq, we can 

begin to refocus on our top national security priority: defeating terrorist networks operating around the globe. 

This hearing has shown that this legislation is fully consistent 

with the Constitution of the United States. Congress should enact 

it, and soon. 

The hearing is adjourned. 

[Whereupon, at 11:43 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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