Letter to Congressional Leadership on Respecting the Limits of Military Force Authorization

The Hon. J. Dennis Hastert
Speaker of the House of Representatives
United States Capitol, Room H-232
Washington, DC 20515

The Hon. Richard A. Gephardt
House Minority Leader
United States Capitol, Room H-204
Washington, DC 20515

The Hon. Robert C. Byrd
President Pro Tempore of the Senate
United States Capitol, Room S-237
Washington, DC 20510

The Hon. Tom Daschle
Senate Majority Leader
United States Capitol, Room S-221
Washington, DC 20510

The Hon. Trent Lott
Senate Minority Leader
United States Capitol, Room S-230
Washington, DC 20510

Re: Respecting the Limits of Pub. L. No. 107-40, Authorization of Military Force

Dear Mr. Speaker and Rep. Gephardt, Mr. President, Senator Daschle and Senator Lott:

On behalf of the American Civil Liberties Union and its 300,000 members, we are again writing to ask you to safeguard Congress’s constitutional role in decisions involving the use of force by insisting on respect for the limits of Pub. L. No. 107-40, a joint resolution adopted on September 14, 2001. This measure approves the use of military force in response to terrorist attacks against the World Trade Center and the Pentagon. We think it is important for Congress to be clear about what the resolution does and does not do.

By its express terms, the joint resolution authorizes the President to use force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?” During the past few months, United States military forces in Afghanistan, acting with other nations and pursuant to the joint resolution, have destroyed or captured fighters for Al Qaeda, the organization the President has determined were responsible for the attacks of September 11, and toppled the Taliban, the regime which harbored them.

However, President Bush has also announced, during his State of the Union address, that “[w]hile the most visible military action is in Afghanistan, America is acting elsewhere.” The President announced that military initiatives against terrorism were being undertaken in the Philippines, Bosnia, and off the coast of Africa. The President also issued a warning to the governments of Iran, Iraq and North Korea, whom he termed an “axis of evil,” hinting at possible military action if those governments do not discontinue their efforts to acquire weapons of mass destruction.

As a matter of longstanding policy, the ACLU neither endorses nor opposes the use of military force abroad, but it has been steadfast in its insistence that any decision to commit American men and women to battle requires meaningful consultation with Congress. Under the Constitution, moreover, only Congress can declare war. In this instance, Congress has chosen not to declare war but has acted instead under the War Powers Act.

The war powers resolution of September 14 cannot and should not be construed by either the President or Congress as a carte blanche. Rather, Congress must continue to play an important role in the national debate as the size and scope of any possible military engagement evolves over time. The resolution does not authorize military force against targets which were not involved in the attacks on September 11, or for objectives other than preventing acts of terrorism. The use of military force in such instances would – and should — require additional congressional authorization, and should be considered on their own merits.

The War Powers Act was adopted in 1973, only nine years after the 1964 Gulf of Tonkin resolution had authorized the President to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” in Southeast Asia. Pub. L. No. 88-408. Having seen Presidents Johnson and Nixon rely on this vague language as a basis for escalating the Vietnam conflict without any further legislative action, Congress passed the War Powers Act as one means of reasserting its vital constitutional role in the decision to commit American forces to battle.

As you know, the War Powers Act contains three basic requirements. First, it requires regular consultation with Congress whenever military action is contemplated. 50 U.S.C. §1542. Second, the Act requires the President to file a report within 48 hours of when armed forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstance.” 50 U.S.C. § 1543(1). The report must outline, among other things, “the estimated scope and duration of the hostilities or involvement,” 50 U.S.C. § 1544(a).

Finally, the Act requires Congress to give its consent, either through a declaration of war or “specific statutory authorization,” such as a joint resolution that references the Act. If Congress does not consent within 60 days of the time the report is, or should have been filed, the President must withdraw American forces within 30 days. 50 U.S.C § 1544(b). The joint resolution adopted by Congress expressly states that it is intended to constitute the “specific statutory authorization” required by the War Powers Act. The resolution also states that it is not intended to supercede any requirement of the War Powers Act.

The War Powers Act gives Congress the means to assert its proper constitutional role with respect to any use of American military force abroad to combat terrorism in the weeks, months, perhaps years ahead. Such use of military force will require difficult and profound moral and foreign policy choices on which the public may well disagree. Through the joint resolution, Congress authorized an initial military response against the perpetrators and those who harbored them. It did not, and under the Constitution it could not, cede its war powers to the President.

Consistent with the constitutional design of the framers and the language of the War Powers Act, we therefore urge Congress to insist that any presidential decision to expand the scope or duration of military involvement into a “wider war” comply with the strictures of the War Powers Act, including the requirements of consultation, reporting and consent within 60 days of the initiation of hostilities or the deployment of troops where hostilities are likely.

In this time of grave crisis, the country may well be faced with a series of critical decisions regarding the scope and duration of our military commitment. Under both the Constitution and the War Powers Act, those decisions must be made with the concurrence of the people’s representatives and not by the President acting alone.

Sincerely,

Laura Murphy
Director, Washington National Office

Timothy H. Edgar
Legislative Counsel

cc: Hon. Joseph R. Biden, Jr.
Hon. Jesse Helms
Hon. Tom Harkin
Hon. Henry J. Hyde
Hon. Tom Lantos
Hon. Dennis Kucinich
Hon. Bob Barr
Hon. Roscoe Bartlett
Hon. Dan Burton
Hon. John Cooksey
Hon. Philip Crane
Hon. Walter Jones
Hon. Marcy Kaptur
Hon. Donald Manzullo
Hon. Charlie Norwood
Hon. Ron Paul
Hon. Tom Petri
Hon. Bob Schaffer
Hon. Thomas Tancredo
Hon. Charles Rangel
Hon. Major Owens
Hon. Edolphus Towns
Hon. Jose Serrano
Hon. Barney Frank
Hon. Edward J. Markey