Wilson Center Event on ISIS and Congressional Authorization

Thank you and good morning. If past history is any guide, I’m hoping that a lame session will be followed by a virile duck, so that is my hope for the next two months. I want to thank Jane for the introduction and the opportunity to be here with Jim and Jack to talk about an issue that I’m very passionate about. Hard to say everything I want to say in ten minutes, but let me try to just say three things.

First, and I never do this, I’m going to talk a little bit about why this matters to me so much. It’s not relevant to whether what I propose is good or bad. But I went to the wreath-laying ceremony at Iwo Jima memorial Monday, and I was at Veterans Day events yesterday, and that made me want to talk for a minute about why this matters to me personally. Second, I want to talk about what’s at stake—both the Constitutional allocation of powers between a president and Congress, but also an underlying moral value that seems, to me, to be the real issue that we often don’t talk about. And third, I want to talk about what we need to do, and I have an immediate term, a short term, and a long term.

Why does it matter to me? People come into elected office with passions and interests, and I have many. But I only have one obsession, and this is it. My obsession with how the nation makes a decision to go to war and what are the right processes that would engage Congress, the President, and the American public—it is an obsession of mine, and I’m going to be focused on it as long as I’m blessed to be here.

The obsession started when I was Lieutenant Governor of Virginia and watched the debate around the Iraq authorization in October of 2002. I was a Lieutenant Governor; I didn’t know anything about the intel, and I assumed everything I heard was true. But even assuming it was all true – and some of it turned out later not to be true – I was very troubled with the fact that a vote was being pushed right before a midterm with no apparent reason for the timing. Remember, we didn’t go into Iraq until March of 2003, so what explained having a big debate and vote - I was listening to it on NPR - and doing it in October of ’02? I concluded that the most likely explanation was a desire to hopefully make a midterm election work out better, and “let’s push the timing so that it happened.” And it turned out to be very smart politics in the sense that the midterm election did work out better than it might otherwise have worked out, but I think it turned out to be very, very problematic. And I would put that vote – and look, I’ve cast votes that I’d take back – but I’d put that vote up with maybe the Kansas-Nebraska Act in 1854 as a low moment for Congress.

That started my obsession. I became Governor. One of the jobs of Governor is being Commander in Chief of the Guard – the Virginia Guard and Air Guard - now that’s a part of the governor’s job that nobody talks about, and you don’t campaign about it, it doesn’t go on the bumper sticker, but when you’re in two wars, and you have thousands of people being deployed, multiple times in many cases. As a Governor you go to the funerals, you go to the deployments, you go to the homecomings. I visited Iraq and Afghanistan to see our troops there. One of my cabinet secretaries’ son was badly injured by an I.E.D.; one of my church members I sang in the choir with had a son that was killed in Iraq; another of my cabinet secretaries’ sons was not physically injured but came back suffering some significant challenges as a result of his service. Along the way, I had both a son and nephew who joined the military. This is up close and personal to us in Virginia; it’s very up close and personal. So my thought about the policy and the fact that it’s so present to us in Virginia, and even in my own family, has turned this into a real obsession of mine. And it’s an important issue.

What’s at stake here? The first thing that’s at stake – and we have one of the real experts in this in Jack on this panel – is the constitutional allocation of powers: How should we make a decision to go to war? And the framers had such a clear view of this, and it was smart. And they were Virginians, so forgive me for maybe leaning a little bit heavy into them. And it is important when you look at the Constitution, and Jane read the section from Article 1 about Congress’s power to declare war. We are used to our Constitution. We forget how abnormal it is, how unusual it is. War, prior to our Constitution, was for the king. It was for the executive; that was what the world history had been. So the framers of the Constitution stood in the flow of history and tried to alter it a different direction and put the decision-making powers about war into a legislative branch, taking it away from a monarchy, taking it away from an executive.

It’s Congress that declares war; it’s the President who’s the Commander in Chief once a war is declared because the last thing you need is 535 Commanders in Chief. But in describing why it was done this way, these folks were very clear. George Mason of Virginia, during the debate about ratification, said, “This provision is meant to be a facilitator of peace, not a facilitator of war. It’s meant to be a clogger of war by handing the power to Congress.”

Principal drafter James Madison about ten years after the Constitution was final wrote a letter to Jefferson and said, “Our Constitution supposes what the history of all governments demonstrates: that it is the executive that is the branch most interested in war and most prone to it. It is for this reason that we have put the question of war in the legislative branch.”

And another Virginian, one of our first presidents, Thomas Jefferson, was confronted with a war kind of similar to what we’re dealing with now – a quasi-terrorist organization in the Mediterranean, North Africa: the Barbary Pirates – grappled with what Congress had said, with what the Constitution said about the allocation of powers. Jefferson knew that as President and Commander and Chief, “I can always defend the nation immediately.” So as our ships were being attacked, he could tell the commanders of the ships, “You’ve got to defend yourselves.” He didn’t need Congress for that. But at some point, he decided, “You know what, just defending every new ship attack doesn’t seem too smart, can’t we go on offense against the Barbary Pirates?” And he said, “When I go beyond the line of defense, I can’t do that without the sanction of Congress.” So it was very clear, initially, from the beginning, that a President could defend against imminent attack without Congress, although you should get Congress on board later. Congress, though, had to declare war; any going on offense against anyone other than imminent defense took a congressional declaration.

That was the clear understanding, but we’ve gotten it wrong virtually since the ink was dry. And it doesn’t matter whether Presidents or Congresses are Republican or Democrat or Whig or Federalist; we’ve gotten it wrong, and we’ve gotten it wrong because Madison was half right but he wasn’t cynical enough. Madison described the provision – the war powers provisions – as a check against executive power: “It’s the executive branch most prone to war, most interested in it, therefore we put it in the legislative branch.” He saw monarchs and executives overreach, but what he didn’t see was legislatures abdicate.

War is unpopular. People will get killed. My constituents may not like it. Well, maybe if the President can initiate, and then if it works out well we can say, “Boy, Mr. President, you know we were with you all the time.” And if it works out poorly, “Mr. President, I mean, how dare you? I can’t believe you did this without coming to Congress.” From the beginning there has been a tendency toward Congressional abdication and I would argue, if anything, it is that that is more explanatory of our current dilemma than executive overreach. But in any event, there is a symbiotic pathology between executive overreach and Congressional abdication that has put us in a situation where Presidents like President Obama – and you can go all the way back – are more prone to start things unilaterally without Congress. So one value is we ought to get our decision-making back so it respects the allocation of powers that was a revolutionary thing when it was done and that actually still is—that war shouldn’t be for the monarch or the executive, it should be for the legislative.

The second thing at stake is the underlying value, and this is what really matters to me. If we don’t do it the way the framers intended, if we allow war to begin unilaterally by a president with a Congress that stands back and says, “Ah, we don’t really want to get involved; there’s a mid-term coming up, and it might make people mad,” then we ask people to risk their lives. I mean, we’re asking people to risk their lives every day. We’ve had the first combat death already against ISIL—a Marine Corporal from Indiana who was killed in an incident with an Osprey helicopter, supporting the airstrike campaign on the Second of October; Jordan Spears was his name. We’re asking people to risk their lives, or risk injury, or risk capture, or risk the mental stress of seeing these things happen to their colleagues, or the mental stress of seeing these things that might happen to civilians who are an unfortunate but always kind of a part of the damage in war. How dare we ask people to risk that if we’re not willing to do our job to have a debate in front of the American public and then put our thumb-print on the mission and say, “This is in the national interest.” What, we’re afraid of having that debate? We don’t want to say it’s in the national interest, but still go risk your life?  That seems to me to be the height of public immorality. Bribery is bad; a whole lot of things are bad. What could you do that would be more publicly immoral than ordering people to risk their lives without having a discussion about whether the mission is worth it or not? That’s what’s really at stake, and, when you don’t have Congress have the debate, you not only violate the Constitution, but you force people to risk their lives without a consensus that the mission is in the national interest.

Finally, what should we do? Very quickly. I propose three things. First, we have to have a legal authorization to cover this current military mission against ISIL because, in my view, from about mid-August to now, there has not been legal authority that is sufficient to authorize this mission.  When the President started airstrikes on August 8th, there was a credible claim that ISIL’s momentum could potentially jeopardize United States embassy personnel, either in Baghdad or more likely in Erbil in Iraq. So he was defending the United States, as Presidents can do without coming to Congress. But by about mid-August, we were engaged in airstrikes to retake a dam that posed no threat to Erbil or Baghdad, that posed no threat to the United States. We were helping rescue refugees, an important thing, but there was no threat to American interests. And so from that time we have been engaged, as the President said, we’ve gone on offense against ISIL. As Chuck Hagel said, we’re in a war against ISIL. We have been engaged in a war that is not about imminent defense of the United States without legal authority. The President’s Article 2 powers as Commander in Chief are, as Jefferson said, about defending against imminent threat. We are beyond that.

And I frankly view the argument that either the ’01 or ’02 authorizations covers this offensive mission against ISIL as ridiculous. This mission against ISIL is not covered by the wording of those authorizations. It’s not covered by the intent of those authorizations. It’s not covered by what members of Congress thought when they voted for these authorizations. And, maybe most importantly, it’s not covered by what President Obama has said about these authorizations. In May of 2013, he said the 2001 AUMF Authorization should be narrowed and repealed, not expanded. And he sent witnesses to testify before us in the Senate about the 2002 Iraq Authorization, and said it was obsolete and it was time to repeal it.

So, in my view, there is currently no legal authority to support the action against ISIL unless and until Congress comes in, has the debate, and votes. That’s why I’ve introduced a resolution in the short term. We should deal with it right away.

Second, we do need to deal with the 2001 Authorization because that continues to be out there. We could deal with it together with the anti-ISIL authorization or separately. The Congress in ’01 passed a brief authorization without a temporal limitation, without a geographic limitation, and, because of the definition of “associated forces” that has been kind of glommed into the ’01 Authorization, even the targets that were subject to that authorization are now very broad. Multiple theaters of war. We’re still at war under that authorization 13 years later, and Administration officials have said they think that the war authorized by the 2001 Authorization will likely go on another 25 or 30 years.

That is unacceptable, and we should be having a debate to significantly narrow that authorization, especially since members of Congress, like Congresswoman Harman in 2001 explicitly rejected the Bush Administration's attempt to have a broader authorization. The Bush Administration came to Congress and said, “Give us the authorization to take, essentially, pre-emptive action against terrorist groups before they hurt us,” and Congress overwhelmingly rejected that. But what both administrations have done basically is expand the authorization that was passed to basically be what Congress rejected in ’01.

The last thing I think we should do, and I’ve introduced legislation with Senator McCain to do this, is go back into the War Powers Resolution of 1973 and come up with a better process for this discussion that will take place, always will take place, between Congress and the President, a process that respects both sides’ Constitutional prerogatives. There’s a group at the University of Virginia, the Miller Center, that has studied this under a panel that was led by Jim Baker and Warren Christopher, and they concluded, actually, there’s never really been a golden era in America where we’ve gotten this right. We’ve changed the process here, there and everywhere. I’m under no illusion that a better process will make these decisions easy – far from it – but not having a process takes hard and consequential decisions and makes them even harder.

And so Senator McCain and I have a bill called the War Powers Consultation Act of 2014 that tries to take the dialogue process, define what in fact is a war in the 21st century that would trigger consultation and voting – cyber-attacks, drones, non-state actors – what is a war? Second, it defines what “consultation” is, so that a President can’t say, “I consulted with Congress,” when he just calls one person. And third, defines what voting requirements would be so the Congress would have to be on board and do their job. These are the three things we’re working on. We do need, as Jane said, to do this right now in the lame-duck. There’s no reason to extend this questionable war for five or six months before Congress gets around to it. I’m excited that we have our first meeting about it in Foreign Relations Committee today and I look forward to working with my colleagues in the debate.

Thank you.