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Kaine: Obama Does Not Have Authority To Wage War Without Congressional Approval

SEN. TIM KAINE (D-VA): Mr. President, one month ago, the President initiated an air campaign against ISIL in Iraq. ISIL is a dangerous terrorist organization committing atrocities against thousands of people, including American hostages, and a strong American response to include military action is certainly warranted.

In the first month of the air campaign, two explanations for the mission were given by the President. We began with a mission for humanitarian purpose and also the need to protect American embassy personnel. Since that time, the White House has stated that the airstrikes may go on for some open-ended period of time. Despite a pledge not to place American boots on the ground, more American military personnel have been deployed to Iraq as advisors and are on the ground now. In order to clarify what's at stake and set a path forward, many of my colleagues and I have called for the President to bring before Congress and the nation a clear plan for defeating ISIL.

I’m gratified that the President will address the nation on this topic tomorrow night. I am supportive generally of the limited and prudent steps taken thus far while Congress was in recess to slow ISIL's momentum. I expect I’ll hear a comprehensive strategy tomorrow. I support the U.S. diplomatic push that’s forced Iraqi government formation, and I am pleased that Iraqi political developments are now moving to form a unity government and Iraqi leaders now must govern inclusively. I’m especially heartened to hear reports that the Administration has worked hard to find a number of nations willing to partner with America to deal with the ISIL threat including nations in the region. The U.S. Cannot be a police force for a region unwilling to police itself. And the U.S. should not bear the sole burden of defeating a terrorist organization that poses a more imminent threat to many other nations than the threat it does to America. I look forward to the President's address, and I’m confident that a well thought out plan against ISIL will compel the support of nation and of Congress.

Now, Mr. President, we are a nation of laws but also of values. I rise particularly today to urge the President not just to inform us of what he plans to do but to follow the Constitution and seek Congressional approval to defeat ISIL. I do so for two reasons. First, I don't believe that the President has the authority to quote “go on offense” and wage an open-ended war on ISIL without Congressional approval. And second, in making the momentous decision to authorize military action, we owe it to our troops who risk their lives to do our collective job and reach a consensus supporting the military mission that they are ordered to complete.

Let me first deal with the legal issue. The Constitution is clear it’s the job of Congress, not the President, to declare war. Some parts of the Constitution, frankly, are vague and open to interpretation. (What's due process? What's cruel and unusual punishment?) Some parts of the Constitution are clear and specific. (You have to be 35 years old to be the President of the United States.) The power to declare war is a clear and specific power. It is an enumerated power of Congress in Article 1.

The clear wording of the Constitution is initially illuminated by the drafter, the Virginian James Madison. In a letter to Thomas Jefferson after the Constitution was ratified, Madison explained the War Powers Clause in Article 1. Quote: "Our Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it, it has accordingly with studied care vested question of war in the legislature."

So a President must seek Congressional approval for significant military action. As Commander In Chief, a President can always take steps to defend America from imminent threats; the framers understood this. But even in those instances, they intended that the President return to Congress to seek ratification of those actions.

If we take the Constitution seriously, as we pledge to do when we take our oaths, we must follow the demand command that the President must come to Congress to initiate major military action. During a Congressional recess, President Obama began a new military action against ISIL. He has indicated that the military action may continue for an extended period of time. He has stated that the action is evolving from a narrow effort to protect Americans from threat to a campaign to go on offense in order to degrade the ability of ISIL to harm. This is precisely the kind of situation that calls for Congressional action and approval.

Now, some have asserted, Mr. President, that the Administration need not seek Congressional approval for an extended campaign of airstrikes. Humbly and respectfully, I deeply disagree with that assertion. The President's Article 2 power allows him to defend America from imminent threat, but it does not allow him the ability to wage an offensive war without Congress

The 2001 Authorization for Use of Military Force crafted by President Bush and Congress in the days after the 9/11 attacks limits the President's power to actions against the perpetrators of those attacks. ISIL was not a 9/11 perpetrator, it didn't form until 2003. Now, President Bush sought a broader AUMF at that time to allow actions against terrorist groups posing a threat to the United States. Had Congress granted such a power, the war fence ISIL would have been with covered by that AUMF. But Congress explicitly rejected the power to wage preemptive war against unnamed terrorist organizations without additional Congressional approval. Any attempt to justify action against ISIL with reference to the 2001 AUMF would fly directly in the face of the clear Congressional action rejecting the preemptive war doctrine.

Congress passed a second AUMF in 2002 to allow military action to topple the Iraqi regime of Saddam Hussein. That task was completed long ago. American troops left Iraq in 2011 and the Administration has testified recently before the Senate that this AUMF is obsolete and should be repealed. It provides no support for military action against ISIL.

There is no treaty of collective defense ratified by Congress that would justify the President commencing action against ISIL.

The Iraqi government has asked for our help, which solves international law sovereignty questions, but that request does not create its own domestic legal justification.

And, finally, the 1973 War Powers Resolution creates a set of timing rules for Presidential action and Congressional response in matters of war. The resolution has been widely viewed as unconstitutional for a variety of reasons, but even excepting its validity--and the President like most, almost certainly does not accept its 60-day limitation on his article 2 powers--it does not change the basic Constitutional framework vesting the declaration of war in the legislative branch.

I believe that a reluctance to engage Congress on this mission against ISIL is less due to any legal analysis supporting broad executive power than to a general attitude held by all presidents that coming to Congress on a question like this is too cumbersome and unpredictable. And that attitude is shared on the Hill by some who view questions of military action, especially in a difficult circumstance like this, as politically explosive and best avoided if at all possible.

I urge the President and my colleagues to resist the understandable temptation to cut corners on this process. There is no more important business done in the halls of Congress than weighing whether to take military action and send service members into harm's way. If we have learned nothing else in the last 13 years, we should have certainly learned that. Coming to Congress is challenging, but the framers designed it to be and we all pledged to serve in a government known for particular checks and balances between the branches of government.

Remember in the days after 9/11, whose anniversary we commemorate this week, President Bush brought to Congress a request for military action. The ruins of the pentagon and the world trade center were still smoking and the search for the lost was ongoing. Certainly, the American public would have supported the President's executive action in that circumstance, but President Bush knew that the nation would be stronger if he came to Congress to seek authority. Similarly, President Bush came to Congress prior to initiating military action in Iraq. So many painful lessons were learned in the aftermath of that authorization, but it is important to remember that it was not unilateral executive decision, but Congress was included and voted to support the mission. I believe it would be a grievous mistake after 13 years of war to evolve toward a new strategy of taking prolonged military action without bothering to seek Congressional approval. And I particularly worry about the precedent it would create for future Presidents to assert they have the unilateral wright rite to engage in long-term military action without the full participation of the people's legislative branch. As President Obama said last year when announcing he would seek military authorization to combat use of chemical weapons in Syria, quote: “this is not about who occupies the office at any given time. It’s about who we are as a country. I believe the people's representatives must be invested in what America does abroad.”

Mr. President, I focus my remarks on the legal reasons for the President to engage Congress on any plan to defeat ISIL. Let me conclude by offering an additional reason, even a more important reason, about why the President and Congress should work together to craft a suitable mission for this important effort.

When we engage in military action, even only an air campaign, we ask our troops to risk their lives and their health, physical and mental. Of course we pray for their complete safety and success, but let's be realistic to acknowledge that some may die, or be injured, or be captured or see these things happen to their comrades in arms. Even those who come home physically safe may see or do things in war that will affect them for the rest of their lives. The long lines of people waiting for VA Appointments today or hoping to have their VA disability benefits claims adjudicated are proof of this.

In short, Mr. President, during a time of war, we ask our troops to give their best even to the point of sacrificing their own lives. When compared against that, how much of a sacrifice is it for a President to engage in a possibly contentious debate with Congress about whether military action is a good idea? How much of a sacrifice is it for a member of Congress to debate and vote about whether military action is a good idea? While Congressional members face the political costs of debate on military action, our service members bear the human costs of those decisions.

And if we choose to avoid debate, avoid accountability, avoid a hard decision how can we demand that our military willingly sacrifice their very lives?

So I await the President's address on the real and significant threat posed by ISIL with a firm willingness to offer support to a well-crafted military mission. I believe the American public and this Congress will support such a mission. It is my deepest hope that we have the opportunity to debate and vote on the mission in the halls of Congress as our framers intended and as our troops deserve.

Thank you, Mr. President. I yield the floor.

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