Testimony of Legislative Counsel Timothy Edgar on Applying the War Powers Resolution to the War on Terrorism Before the Senate Judiciary Subcommittee on the Constitution

American Civil Liberties Union

Testimony at a Hearing on
Applying the War Powers Resolution to the War on Terrorism
Before the Subcommittee on the Constitution
of the Senate Judiciary Committee

Submitted by Timothy H. Edgar, Legislative Counsel
April 17, 2002

Mr. Chairman, Senator Thurmond and members of the Subcommittee:

We commend you for holding this important oversight hearing on applying the War Powers Act to the “war on terrorism.” The War Powers Act provides the framework to ensure that future decisions about whether to use military force will made not by the President acting alone, but by the President acting with the consent of Congress, as the framers of the Constitution intended. The American Civil Liberties Union is a non-profit, non-partisan organization with almost 300,000 members, dedicating to preserving our civil liberties and our constitutional freedoms even in times of crisis.

The ACLU has been steadfast in its insistence that any decision to use military force must, under our Constitution, receive Congressional approval either through a declaration of war or a joint resolution pursuant to the War Powers Act. These principles apply with equal force to the current “war on terrorism.” The ACLU does not, as a matter of longstanding policy, support or oppose any particular decision to use military force, but does insist that such important decisions involving the lives of American troops require not only consultation with Congress, but approval from the people’s elected representatives.

Congress Must Continue to Insist on Its Constitutional Role

We strongly urge members of this subcommittee to safeguard Congress’s constitutional role 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.

On November 13, 2001, President Bush issued a “Military Order” authorizing indefinite detention, and possible trial by military tribunal of non-citizens “in the war on terrorism,” citing the authority of the joint resolution. He did so despite the fact that such military tribunals were last used at a time of declared war. The joint resolution did not declare war, nor had the Congress even hinted it intended to authorize military trials by adopting the resolution.

Congress should set the Administration straight about the limits of the joint resolution. The joint resolution is not a declaration of war, nor is it a carte blanche to use military force without further Congressional authorization whenever the President invokes the “war on terrorism.”

The Authorization of Force Resolution is Not a Declaration of War

Under the Constitution, only Congress can declare the existence of a “state of war,” a decision with important consequences for civil liberties. In this instance, Congress has chosen not to declare war but has acted instead under the War Powers Act. Congress is permitted to authorize “limited hostilities,” rather than declare a general war. Talbot v. Seeman, 5 U.S. 1, 28 (1801). When Congress does so, as it did on September 14, the President is not given all of the authority to wage war that the Constitution permits; instead, he is limited to the authority Congress has given him by statute. As Justice Chase explained:

If a general war is declared, its extent and operation are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal [domestic] laws.

Bas v. Tingy, 4 U.S. 37, 43 (1800). In Little v. Barreme, 6 U.S. 170 (1804), the Supreme Court struck down, during a “limited war,” a President proclamation allowing the seizure of French vessels sailing “from or to” France, reasoning that Congress had only authorized by statute the seizure of vessels “to” France. Id. at 177.

For this reason, among others, we do not believe that the joint resolution gives the President the authority to use military tribunals to indefinitely detain terrorism suspects, try “enemy belligerents” for “law of war” violations, or to suspend other important constitutional rights. The joint resolution nowhere mentions the creation of military tribunals or other suspensions of civil and constitutional rights, nor does the debate on the joint resolution indicate that such tribunals were intended or even contemplated by those who voted in its favor.

The Authorization of Force Resolution Contains Important Limits

While the resolution of September 14 does not declare war, it does authorize the use of military force. Still, even in this area it 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.

Conclusion

Consistent with the constitutional design of the framers and the language of the War Powers Act, we urge Congress to insist that any presidential decision to expand the scope or duration of military involvement into a “wider war” involving other nations 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.

We welcome your continued oversight of the war on terrorism, and we pledge to work with you to ensure against erosion of the War Powers Act and the Constitution’s checks and balances. In this time of continued danger from terrorism, the country will 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.