DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1999 (Senate - July 30, 1998)

AMENDMENT NO. 3465

(PURPOSE: TO PROHIBIT THE AVAILABILITY OF FUNDS FOR OFFENSIVE MILITARY OPERATIONS EXCEPT IN ACCORDANCE WITH ARTICLE I, SECTION 8 OF THE CONSTITUTION)

Mr. DURBIN. Mr. President, I send an amendment to the desk.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Illinois [Mr. Durbin] proposes an amendment numbered 3465.

The amendment is as follows:

On page 99, between lines 17 and 18, insert the following:

Sec. 8104. No funds appropriated or otherwise made available by this Act may be used to initiate or conduct offensive military operations by United States Armed Forces except in accordance with Article I, Section 8 of the Constitution, which vests in Congress the power to declare war and take certain other related actions.

Mr. DURBIN. Mr. President, it is the usual custom in the Senate as long as I have been here--almost 19 or 20 months now--to dispense with the reading of an amendment. In this case, I did not--first, because the amendment in its entirety is very brief, only one page; and, second, I wanted those who are following this debate to hear each word of the amendment, because in the wording of this amendment I think we have an important decision to make on the floor of the U.S. Senate.

This amendment which I offer reaffirms that the United States should only go to war in accordance with the war powers vested in the Congress by the Constitution. My colleague, who has just joined us on the floor, Senator Byrd of West Virginia, carries a well-worn and tattered version of that Constitution with him. I bet he has it on his person as this moment--and I win my bet--and Senator Byrd refers to it frequently to remind all of us that we, when we took the oath of office to become Members of the U.S. Senate, swore to uphold this Constitution.

The section of the Constitution which my amendment addresses is one which is central to the power of the U.S. Senate and the power of Congress. Article I, section 8, includes in the powers of Congress, the power:

To declare War, grant Letters of Marque and Reprisal and make Rules concerning Captures on Land and Water.

Most constitutional scholars will know the meaning of the term `marque and reprisal.' We have read it many times, but for those of us who need to be refreshed, that is an effort, short of war, where the United States, short of some commitment of major troop forces and the like, would seek to impose its will or stand for its own national security.

The most operative section of Article I, section 8, are the simple words `To declare War.'

This amendment would prohibit the use of funds appropriated to the Department of Defense for `offensive military operations,' except in accordance with Article I, section 8, which specifically gives to Congress, and Congress alone, the power to declare war and take other actions to govern and regulate the Armed Forces.

A similar amendment was offered by Congressman David Skaggs of Colorado and Congressman Tom Campbell of California in a bipartisan fashion. It has passed the House of Representatives. It is part of the Department of Defense appropriations bill, which will be considered in conference with the bill that we are debating.

This amendment that I offer today reaffirms that the Constitution favors the Congress in the decision to go to war, and that Members of Congress have a constitutional responsibility that they cannot ignore with regard to the offensive use of Armed Forces. Why is this necessary? Let me quote from a scholar who has written on this subject extensively. Louis Fisher is a senior specialist in the separation of powers with the Congressional Research Service at the Library of Congress. He wrote in an article entitled `Sidestepping Congress: Presidents Acting Under the UN and NATO:

Truman in Korea, Bush in Iraq, Clinton in Haiti and Bosnia--in each instance, a President circumvented Congress by relying either on the UN or NATO. President Bush also stitched together a multilateral alliance before turning to Congress at the eleventh hour to obtain statutory authority. Each exercise of power built a stronger base for unilateral Presidential action, no matter how illegal, unconstitutional and undemocratic. The attitude, increasingly, is not to do things the right way, in accordance with the Constitution and our laws, but to do the `right thing.' It is an attitude of autocracy, if not monarchy. How long do we drift in these currents before discovering that the waters are hazardous for constitutional government?

On January 12, 1991, the Congress, in addition to authorizing the use of force to drive Saddam Hussein from Kuwait, took an important vote asserting its constitutional responsibilities and insisting that the President follow the wisdom of the framers of our Constitution when considering a question as serious as war. Despite the vocal opposition of the Bush White House, the House of Representatives in which I served voted 302-131 in favor of a resolution that I offered with Congressman Bennett of Florida. You may recall what happened. When Saddam Hussein of Iraq invaded Kuwait, there was fear that he would continue and then invade Saudi Arabia. The United States began positioning forces in Saudi Arabia. At the invitation of the Saudis, we brought in a sufficient force to at least discourage, if not deter, Saddam Hussein.

Over time, it became clear that the force in place was growing and the intention was just not to protect Saudi Arabia, but in fact to remove Iraqi forces from Kuwait. At that moment, the nature of our commitment changed, and at that moment, the congressional responsibility changed, from my point of view. We were no longer in Saudi Arabia just at the invitation of the Saudis to defend; we were preparing a massive military force to, in fact, invade Kuwait and to oust the Iraqis. We knew that that would necessarily involve the loss of life, and many of us in Congress believed that it clearly fit within the four corners of Article I, section 8, that Congress should act and, in fact, we did. There was an extensive debate on the floor of the Senate, as well as the House of Representatives, and ultimately, Congress voted to authorize the use of force by the President--President Bush at the time--in order to push the Iraqis out of Kuwait.

Another important congressional action was a 1994 Senate resolution rejecting the Clinton administration's claim that the United Nations Security Council 940 constituted `authorization for the deployment of U.S. Armed Forces in Haiti under the Constitution of the United States.' The Senate passed this resolution by a resounding 99-0 vote. The framers never intended the Armed Forces to be employed by the Executive as a blunt instrument for enforcing U.S. foreign policy without congressional approval. Yet, in the Iraq crisis earlier this year, and in the unstable situation in Kosovo today, that is exactly what we have seen. Absent a reaffirmation by Congress of its proper constitutional war powers, we will certainly see it again. The time for this amendment is now. I will speak to the Kosovo situation toward the close of my opening statement.

Article I, section 8, clause 11 of the Constitution, the so-called war powers clause, vests in Congress this power that I have read. Other clauses of the same article I, section 8 vests in Congress the power to `define and punish piracies' and `offenses against the Law of Nations,' `raise and support armies,' `to provide and maintain a navy,' and `make rules for the government and regulation of the land and naval forces,' and `to provide for organizing,' arming, and disciplining the militia, and `governing such part of them as may be employed in the service of the United States.'

Very significantly, clause 18 of this section gives Congress the power to `make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' This clause clearly states that it is Congress that makes the laws for the regulation of the Armed Forces, especially in matters of war.

Article II, section 2 of the Constitution states:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.'

That is all the war powers vested in the President by the Constitution. It is instructive for us to look back at the debate which gave rise to these constitutional provisions.

Comments by the framers of the Constitution clearly indicate their intent in favor of Congress in matters relating to the offensive use of military force.

James Wilson, speaking at the Pennsylvania State Convention on the Adoption of the Federal Constitution, argued that the system of checks and balances built into the Constitution `will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man or a single body of men to involve us in such distress; for the important power of declaring war is vested in the legislature at large.'

No one less than Thomas Jefferson explained that he desired Congress to be `an effectual check to the dog of war.'

James Madison wrote that Congress would have the power to initiate war, though the President could act immediately `to repel sudden attacks' without congressional authorization.

Roger Sherman further delineated on the President's war powers: `The executive should be able to repel and not to commence war.'

Constitutional scholar Louis Henkin of Columbia University wrote this in 1987:

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There is no evidence that the framers contemplated any significant independent role--or authority--for the president as commander in chief when there was no war. . . . The president's designation as commander in chief . . . appears to have implied no substantive authority to use the Armed Forces, whether for war (unless the United States were suddenly attacked) or for peacetime purposes, except as Congress directed.

International law scholar, John Bassett Moore, wrote in 1944:

There can hardly be room for doubt that the framers of the Constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the Executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he called his action something other than `war' or persisted in calling it peace.

The constitutional framework adopted by the framers for the war power is remarkably clear in its basic principles. The authority to initiate war lay with Congress. Other U.S. Presidents have affirmed this interpretation of war powers under the Constitution.

Abraham Lincoln wrote this in 1848:

This, our (Constitutional) Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.

Fast forward 100 years into the 20th century, as we debated the possibility of creating a United Nations. The U.N. Charter was written against the backdrop of the disaster of the Treaty of Versailles and President Wilson's determination to make foreign policy without Congress. When President Wilson submitted that treaty to the Senate in 1919, he attached the covenant of the League of Nations. Senator Henry Cabot Lodge offered a number of reservations, specifically including a protection of the prerogative of Congress, and Congress alone, to declare war. President Wilson called this reservation `a nullification of the treaty.' The issue was joined. The Senate rejected the treaty, and thereby the League of Nations, in 1919 and again in 1920.

In the midst of World War II, when the concept of another world organization began to form, care was taken not to cross the line that had doomed the League of Nations. Any commitment of U.S. forces to a world body would require prior authorization by both Houses of Congress. Debate on the Hill between the House and Senate had more to do with each body's prerogative and role than the underlying assumption. Even under the auspices of the United Nations, congressional approval was necessary before troops could be committed.

Section 6 of the United Nations Participation Act is explicit. Agreements `shall be subject to the approval of the Congress by appropriate act or joint resolution.'

Ultimately the decision was reached that both Houses of Congress--not just the Senate under its treaty authority--was necessary.

Soon after President Roosevelt's death, President Harry Truman sent a cable from the conference in Potsdam that led to the establishment of the U.N., stating that all agreements involving U.S. troop commitments in the U.N. would first have to be approved by both Houses of Congress.

President Eisenhower assured the press, in January of 1956, in an often-quoted statement, `When it comes to a matter of war, there is only one place I would go, and that is the Congress of the United States and tell them what I believe. I will never be guilty of any kind of action that can be interpreted as war until Congress, which has constitutional authority, says so. I am not going to order any troops into anything that can be interpreted as war until Congress directs it.'

In the creation of NATO, Secretary of State Dean Acheson told the Senate Foreign Relations Committee in 1949 that the North Atlantic Treaty Organization `does not mean the United States would automatically be at war if one of the other signatory nations were the victim of an armed attack. Under our Constitution the Congress alone has the power to declare war.'

Then came Korea. President Truman sent U.S. troops in 1950 without ever seeking, or obtaining, congressional authority. By historical fluke, the Soviet Union was absent from the U.N. Security Council when a crucial vote was taken responding to the possibility that the Korean peninsula would be overrun. Without a Soviet veto, the U.N. moved forward, and President Truman rationalized the use of force in this `police action' to uphold the rule of law.

I recall that particularly, because my two older brothers served in the Korean war, and there was an ongoing joke about the fact that this was just a `police action.' They knew better. All of the families and all of those involved knew that it was, in fact, a war.

The courts, too, have supported the constitutional prerogatives of Congress with regard to war-making, including the implied constitutional power to `authorize' war.

The Supreme Court in Bas v. Tingy, in 1800 said, `Congress is empowered to declare general war, or Congress may wage a limited war; limited in place, in objects, and in time. . . .'

Chief Justice Marshall, writing in Talbot v. Seeman in 1801: `The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as guides in this inquiry.'

U.S. Circuit Court, New York, U.S. v. Smith, 1806: `It is the exclusive province of Congress to change a state of peace into a state of war.'

More recently, during the Persian Gulf episode, a case was filed in the U.S. district court in Washington. I joined with petitioners who filed this action to ask the court to spell out the power of Congress when it came to the declaration of war. The court rejected the Justice Department's contention that `the question whether an offensive action taken by American armed forces constitutes an act of war (to be initiated by a declaration of war) or an `offensive military attack' (presumably undertaken by the President in his capacity as Commander in Chief) is not one of objective fact but involves an exercise of judgment based upon all the vagaries of foreign affairs and national security.'

The court said, `This claim on behalf of the Executive is far too sweeping to be accepted by the courts. If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an `interpretation' would evade the plain language of the Constitution, and it cannot stand.'

Mr. President, over the last 40 or 45 years, Congress has virtually ceded its constitutional war powers responsibilities to the President. Many of the significant instances of use of force by the Executive without congressional authorization, including the only major unauthorized war in Korea, and localized conflicts in the Dominican Republic, Grenada, and Panama, among others, occurred during this period.

I will not visit that sad and contentious chapter of American history surrounding the Vietnam war, but suffice it to say that after that war Congress made the decision, through the passage of legislation, to take a more active role in the decisionmaking process.

The 1973 War Powers Resolution, which then-Armed Services Committee Chairman John Stennis called `an important step in this Congress to assume its duty in representing the people of this Nation,' unfortunately has done little to slow down the gradual assumption of war powers claimed by successive administrations or to embolden Congress to properly exercise its war powers responsibilities under the Constitution.

Even in signing the congressional authorization of the use of force against Iraq in 1991, President Bush went to great pains to emphasize his claim that he possessed constitutional authority to act. `As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing of this resolution does not, constitute any change in the longstanding position of the Executive Branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests, or the constitutionality of the War Powers Resolution.'

The Clinton administration echoed President Bush's comments and even took it one step further.

During her congressional testimony during the Iraq crisis this last February, Secretary of State Madeleine Albright spoke of `the President's constitutional authority as Commander in Chief to use armed forces to protect our national interests.'

In a Statement of Administration policy threatening a veto of the House version of this bill if the Skaggs-Campbell amendment were included, the administration stated that, `The President must be able to act decisively to protect U.S. national security and foreign policy interests.'

I do not believe that the framers of our Constitution would have ever accepted such inflated claims of executive authority, or the idea the Armed Forces should be used by the President as a device for implementing administration foreign policy, without the approval of Congress.

President Bush's comments notwithstanding, Congress made a good start in regaining its proper constitutional war powers in its thorough 1991 debate and vote to authorize the war in the Persian Gulf. Congress affirmed at that time that its responsibilities extended far beyond merely paying the bills for Presidents' wars.

Now it is time for the Congress to take the next step. This amendment will restore the proper constitutional balance between the executive and legislative branches in deciding when or if the United States is to go to war.

Mr. President, in the time that I have served on Capitol Hill, in both the House and Senate, it has been my sad responsibility on several occasions to attend funerals in my home district, in my congressional district, for the families of those who have fallen in combat.

I can't think of a sadder occasion--one of the saddest that I can recall--than the one that involved the sending of Marines to Lebanon, putting them in harm's way, and after a terrible bombing of the barracks, the loss of life of a young man from Springfield, IL. Time and again, I thought at those sad services that there is a legitimate question the family could ask of their elected representative in Congress, and now in the U.S. Senate. Was I part of the decision that led to the war that took their son's life? Because the Constitution makes it clear that I should have been part of that decision. In so many instances, I was not; the decision was made by the President. The only course for Congress is control of the purse, and virtually nothing else. As a direct result, we lost lives without the American people speaking to the question of war through their elected Congress.

I caution my colleagues to read carefully this amendment and to realize that it does more than assert our constitutional authority to declare war. It also asserts our responsibility. Be careful for what you wish because with the passage of this amendment and the reassertion of our constitutional responsibility, we will be and should be called on more frequently to make important decisions about committing American troops.

There is one operative and very important word in this amendment. It is the word `offensive,' as in offensive military operations. So the Record is eminently clear, there is no doubt in my mind nor in anything I have read that the President of the United States, as Commander in Chief, has the power to protect American citizens and the property of the United States. He need not come to the Congress and seek our approval when he is, in fact, defending Americans and their property. We are talking about a separate circumstance, a circumstance where instead of taking a defensive action, the President decides to take an offensive action.

I might also add that for those who say, clearly the Senator from Illinois is offering this amendment because he is concerned about some current conflict, well, yes, I am concerned. I am concerned about any conflict that involves American lives, but that isn't what motivates me to join the gentleman from Colorado who offered this amendment in the House of Representatives. As I mentioned earlier, it was almost 7 years ago that I joined Congressman Bennett of Florida in a similar effort. I do believe this principle is sound, and those who want to gainsay this effort should know that I have tried to stand by this principle through the time that I have been in Congress.

Is there a need for us to consider it now? I will leave that to your judgment. Consider the statements made by Robert Gelbard, special representative of the President and Secretary of State on Implementation of the Dayton Peace Agreement, when he spoke before the House International Relations Committee in Washington on July 23, 1998, relative to the tragedy in Kosovo.

Mr. Gelbard said:

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In NATO councils, planning for possible NATO action is nearly completed. While no decision has been made regarding the use of force, all options, including robust military intervention in Kosovo, remain on the table. NATO planning is on track and Milosevic understands that this is no idle threat. The deteriorating situation in Kosovo is a threat to regional peace and security. The potential for spillover into neighboring States remains a paramount concern. We and our allies have made clear to President Milosevic that spillover of the conflict into Albania or Macedonia will not be tolerated.

Make no mistake, if Mr. Gelbard's statement is a statement of administration policy, the administration is poised to initiate an offensive military action relative to Kosovo, an action which I believe clearly requires congressional approval, If the men and women in service to our country who are presently in Bosnia--and I believe the number is about 6,900--should be called to take offensive military action and lives are lost, from all that I have read, it is clearly in derogation of article I, section 8 of the Constitution. This President, my President, any President, has the responsibility to come to Congress to seek our approval. Of course, then the responsibility is on our shoulders to decide whether or not this is in America's national security interest.

I ask my colleagues in the Senate in considering this amendment to consider the historical perspective here. For the first time since World War II, when President Franklin Roosevelt hobbled up the steps to take the podium for a Joint Session of Congress in the House of Representatives, asking for a declaration of war, we will state in clear and unequivocal terms that we are asserting our constitutional responsibility and authority when it comes to a declaration of war.

I understand that this will require more dialogue and conversation between the executive and legislative branches about our foreign policy, and particularly about committing troops, but I do believe that is what the framers of the Constitution had in mind. Those of us who must face the families and explain to them why their daughters and sons, their husbands, their wives and friends and relatives are called on to not only serve this country, but stand in harm's way and risk their lives have to have the authority to stand before them and say we have done our part, we have played our role, we have made the judgment, the judgment which the Constitution gives to us and us alone to make.

At this point, Mr. President, I ask unanimous consent, to add Senator Feingold as an original cosponsor of this amendment.

The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so ordered.

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Mr. DURBIN. I reserve the remainder of my time.

Mr. BYRD. Mr. President, will the Senator yield me some time?

Mr. DURBIN. I would be happy to yield to the Senator from West Virginia.

Mr. BYRD. How much time remains?

The PRESIDING OFFICER. The Senator has 9 minutes remaining.

Mr. BYRD. Mr. President, I can't get started in 9 minutes on this subject.

Mr. DURBIN. I wonder if the Senator from West Virginia might be able to secure some time from the other side. I would be happy to ask, if there is anyone in the Chamber. They might be called for that purpose.

Mr. BYRD. Mr. President, I was not in the Chamber when the agreement was entered into. My friend knew of my interest in speaking on the amendment, and I wish I had been protected.

Mr. DURBIN. May I ask the Chair, it was my understanding that at about quarter of 7 we agreed we would debate this until 8 o'clock equally divided?

The PRESIDING OFFICER. The Senator is correct.

Mr. DURBIN. That is correct. That is how time was calculated. I am sorry; I apologize to the Senator from West Virginia, whom I asked to come to the floor, and I would be glad to give him every minute remaining. I am sorry that I had gone as long as I did, because I am anxious to hear his remarks.

Mr. BYRD. Mr. President, I don't know how much time the opponents of this amendment will require.

Mr. President, I think I will just ask for 2 minutes.

The PRESIDING OFFICER. The Senator is recognized.

Mr. BYRD. I wish to thank the opponents for offering 10 minutes to me, but I feel that I will just ask that my speech be printed in the Record.

On a matter of this gravity, I am disappointed that the Senate has entered into an agreement to speak for what would amount to about 1 hour and 15 minutes for both opponents and proponents. Of course, the distinguished Senator from Illinois is preeminently correct in what he has said about the Constitution and what he has said about the efforts toward aggrandizement on the part of this administration and most recent administration when it comes to the war powers.

We have in the Senate particularly, may I say, additional responsibilities over those of the House in this area of war powers because of the Constitution and provisions therein, and it seems to me that we ought to take a little more time when it comes to debating an amendment of this importance. This is an amendment that is calculated to protect the prerogatives of the Senate when it comes to our constitutional powers and duties, and here we are limited to 1 hour and 15 minutes.

In saying this, of course, I am complaining, but I also want to thank Mr. Durbin and I want to thank Mr. Stevens for their consideration and kindness in offering to give me some additional time.

Mr. DURBIN. Mr. President, before the Senator from West Virginia leaves the floor, I have just contacted the majority in an effort to postpone the vote so we can extend this debate. I certainly would like the Senator from West Virginia to have an opportunity to state his position clearly. I believe it will be a valuable addition to this debate. I will be happy to afford an equal amount of time to the other side, so there is no disadvantage created.

Before I make that unanimous consent request, I have asked the majority side if there is objection.

Mr. STEVENS. What? I object. Just a second.

The PRESIDING OFFICER. Objection is heard.

Mr. DURBIN. If I might ask the Senator from Alaska, Senator Byrd has come to the floor to speak to this issue. I was wondering if it might be allowed by unanimous consent to extend --postpone the vote for a sufficient time so that each side could have an equal amount of time, to give the Senator from West Virginia his opportunity.

Mr. STEVENS. I say to the Senator, I have talked with Senator Byrd. We are perfectly prepared to have him continue to take time.

Under a unanimous consent agreement, at 8 o'clock we have Senators coming back to vote, and hopefully we can vote at approximately that time. I don't know how long my good friend is going to speak, but I will limit the amount of time spent in opposition. We will just make the motion to table when the time comes. We do not want to extend it now. We are going to have to be here until 3 or 4 o'clock in the morning as it is, so I object to any further change in this time agreement, and I urge my good friend from West Virginia to make his statement. He knows we will accommodate him with such time as he needs. But let's not change the time agreement yet.

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The Senate continued with the consideration of the bill.

The PRESIDING OFFICER. The Senator from Alaska.

Mr. STEVENS. Mr. President, it is my understanding when the Senator returns to the floor, Senator Byrd will speak. I state to the Senate, there is substantial opposition to this amendment. I am one who voted against the War Powers Act, but I think this goes too far. It is an amendment that should be considered by the Armed Services Committee and not debated at the last minute on an appropriations bill.

In the old days, we had a point of order against legislation on an appropriations bill. This is purely legislation on an appropriations bill. That point of order is not available to us now, but the concept is still there, and that is what we are trying to establish once again--the concept that we limit this to relevant amendments to the provisions of this bill that regard spending of money for our defense in the fiscal year 1999.

This is a provision that is ongoing for years. It is not related to this bill. It is not a matter that was before the Senate Appropriations Committee in any way, and it should be part of the Armed Services' consideration. There was an Armed Services bill brought before us before. It would have been perfectly proper to have that brought up at that time in connection with the Armed Services' bill. But I do not think it is proper to bring it up in this bill.

For that reason, as I said before, when the time for Senator Byrd has expired, I intend to move to table the amendment. But, as I indicated to him, I offer him the full amount of time that was allocated to this side to present his statement, plus what is left to the Senator from Illinois.

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Mr. DURBIN addressed the Chair.

The PRESIDING OFFICER. The Senator from Illinois.

Mr. DURBIN. Could I ask for clarification of the time remaining to both sides?

The PRESIDING OFFICER. The Senator from Illinois has 4 1/2 minutes. The Senator from Alaska, 32 minutes.

Mr. DURBIN. Mr. President, I reserve the remainder of my time.

Mr. STEVENS. I suggest the absence of a quorum, the time to be charged to our side.

The PRESIDING OFFICER. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. STEVENS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Alaska is recognized.

Mr. STEVENS. It is my understanding the Senator from Illinois will use the remainder of his time. I understand it is 4 and some-odd minutes.

The PRESIDING OFFICER. Four-and-a-half minutes.

Mr. STEVENS. It is my understanding Senator Byrd, to my great regret, is not going to make his statement. Under the circumstances, I yield back the remainder of our time and ask that the time of the Senator from Illinois start at 4 1/2 minutes before 8 o'clock, and we will vote at 8 o'clock.

The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

Mr. STEVENS. Mr. President, I just conferred with Mr. Cortese, the staff director. I am told that we have but one other Senator who has indicated an intention to debate an amendment tonight. We are working now on the remainder of the second managers' package which we should be able to present to the Senate in about 10 to 15 minutes. I ask the cloakrooms to send out notice to Senators that after presentation of that second managers' amendment, I shall move to go to third reading, unless Senators who have amendments on this list come forth to debate them.

We have a very serious situation tomorrow morning. Many Senators told me they want to go to the second funeral of our deceased friend, the officer who was killed in the line of duty. That means we cannot commence voting until 1 o'clock.

We have accepted a great many of these amendments and are prepared to accept them. If Senators want to know whether that is the case, I urge them to come and review the managers' package.

I will not indicate the name of the Senator who we think wants to debate the amendment, because he may not want to debate it. If no one comes after the motion to table the Durbin amendment to present an amendment, I shall move to go to third reading. It is a debatable motion, and we may have some debate on that. I recall my good friend from West Virginia taught me how to do that, Mr. President. So we are going to proceed along that line. I ask my friend from Hawaii if he knows of any amendments or any matter to take up at this time.

Mr. INOUYE. No, we are prepared to go to third reading.

Mr. STEVENS. The managers of the bill are prepared to go to third reading, unless a Senator appears to debate an amendment. I suggest the absence of a quorum and ask that it extend only until 5 minutes of the hour of 8 o'clock.

The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

AMENDMENT NO. 3465

Mr. BIDEN. Mr. President, I ask unanimous consent, since there is no one seeking to speak, to speak for 7 minutes in support of the Durbin amendment.

The PRESIDING OFFICER. Without objection, it is so ordered. Under the previous order, debate will end at 5 of the hour.

Mr. BIDEN. Mr. President, I am asking only to go until 10 of the hour.

The PRESIDING OFFICER. The Senator is recognized.

Mr. BIDEN. Thank you very much.

Mr. President, I am going to support the Durbin amendment, and I admire what he is attempting to do and respect his effort. I am not, quite frankly, certain it will have its intended effect.

I strongly agree with the views expressed by my friend from Illinois, that what I call the `monarchist' view of the war power has become the prevalent view at the other end of Pennsylvania Avenue, and it does not matter whether it is a Democratic President or a Republican President. And the original framework of the war power clause envisioned by the Founding Fathers, I think, has been greatly undermined over the last several decades.

On the question of war power, I believe the Constitution is as clear as it is plain. Article I, section 8, provides that the Congress has the power `to declare War, [and] grant Letters of Marque and Reprisal . . . .' Article II, section 2, provides, `The President shall be Commander in Chief of the Army and Navy of the United States.'

To be sure, the Commander in Chief ensures that the President has the sole power to direct U.S. military forces in combat. But that power--except in very few limited instances--derives totally from congressional authority. It is not the power to move from a state of peace to a state of war. It is a power, once the state of war is in play, to command the forces, but not to change the state.

Until that authority is granted, the President has no inherent power to send forces to war--except, as I said, in certain very limited circumstances, such as to repel sudden attacks or to protect the safety and security of Americans abroad.

On this point, the writings of Alexander Hamilton, a very strong defender, as the Presiding Officer knows, of Presidential power, is very instructive. In Federalist No. 69, Hamilton emphasized that the President's power as Commander in Chief would be `much inferior' to that of the British King, amounting to `nothing more than the supreme command and direction of the military and naval forces.'

During the cold war, and during the nuclear age, the thesis arose that, at a time when the fate of the planet itself appeared to rest on two men thousands of miles apart, Congress had little choice, or so it was claimed, but to cede tremendous authority to the Executive.

Unfortunately, despite the end of the cold war, the view that the President had this authority has continued to survive--and flourish--under Presidents of both political parties.

On the eve of the gulf war, President Bush insisted that he did not need congressional authorization to send half a million men and women into combat with Iraq. I insisted at that time we hold hearings on that subject and there be a resolution concluding whether or not he had that power.

More recently, President Clinton asserted sweeping theories about his power to deploy forces to Haiti and to begin offensive military action against Iraq.

I believe we need to remedy this constitutional imbalance. Accordingly, I have offered in the past, and I have drafted, comprehensive legislation called the Use of Force Act, which is designed to replace the War Powers Resolution.

The Durbin amendment is far shorter and more direct in its approach. And although I support it, as I said, I am skeptical that it will achieve its total desired effect. The Durbin amendment would bar the use of appropriated funds for `offensive military operations' by Armed Forces `except in accordance with Article I, section 8 of the Constitution.'

I believe the Constitution already says that, that we need not redeclare that. But I think it is valuable to do it if it sends a message that we are going to be looking a whole lot closer.

In my view, the President may not use force, except in certain limited circumstances, without the authorization of the Congress, period. The war power is not limited to a formal declaration of war--of which we have had only five in our history. The Founding Fathers had little interest, it seems, in the ceremonial aspects of war. The real issue was congressional authorization of war.

As Hamilton noted in Federalist 25, the `ceremony of a formal denunciation of war has of late fallen into disuse.' Obviously, the founders were not talking about a circumstance where the only circumstance that the Congress could impact on whether we use force or not is with a formal declaration of war. Even in 1789--to quote Hamilton--ceremonial declarations of war had fallen into disuse, so obviously that is not what they were talking about alone.

The conclusion that Congress has the power to authorize all uses of force is buttressed by the inclusion in the war clause of the power to grant letters of marque and reprisal. An anachronism today, I acknowledge, letters of marque and reprisal were, though, in the 18th century, their version of limited war. Even back then, for a President to engage in limited war, he needed the authorization of the U.S. Congress. The vehicle was issuing letters of marque and reprisal.

I understand that the administration has expressed its strong opposition to this provision and is threatening to veto it. I have called the administration and indicated they are being foolish in even making that threat, with all due respect. It is merely an institutional instinct that does not surprise me, but I am somewhat surprised by the volume of the objection.

The Durbin amendment, if enacted, may have one salutary effect: It could force the President and his advisors to pause before continuing to make broad assertions of Presidential war power.

If even that result is achieved, the enactment of the Durbin amendment will be a positive development in restoring the constitutional imbalance.

Mr. President, I will not take the time now, but I will, at the appropriate time, reintroduce the Use of Force Act that I have in previously attempted to have passed, working with a number of constitutional scholars who have written extensively in this area.

Let me conclude in the 30 seconds I have left to again compliment the Senator from Illinois. It is time the Congress, with the changed world, reassert its rightful role in the conduct of the use of force, and, now that the world has changed, the old saw about the need for this emergency power--the Congress being less relevant in that regard--should be put to bed once and for all.

I thank him for his effort and I yield the floor.

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Mr. STEVENS. Mr. President, I know that the Senator from Illinois still has 5 and a half minutes. But I ask unanimous consent that it be in order for me to put down the first of the series of the second managers' package.

The PRESIDING OFFICER. Without objection, it is so ordered.

................

Mr. DURBIN. Mr. President, I thank the Senator from Alaska for his generosity. I will conclude at 8 o'clock, as we promised, and ask for a vote on this. Allow me to try to describe what is at stake, because for everybody in the gallery and those listening to the debate, this could hit home some day. It is a question about when or if the United States should ever go to war, who will make the decision. If you were called on, or one of your children was, who will decide whether or not that person will stand in harm's way, risk their lives for their country?

I have the deepest respect and admiration for those who serve in the armed services. They have given up their lives to protect this Nation and we owe them a great debt of gratitude. What we are talking about is how this decision is made. The men who wrote this Constitution understood very clearly that if they were going to have a voice in the process, they would have to rely on the Senators and Members of Congress to make that decision on the declaration of war.

This amendment is very brief. By Senate standards, it is amazingly brief--just a few lines. But it states very clearly what I think is an important constitutional concept. First, the President of the United States as Commander in Chief of all of our Armed Forces still retains all of his power and authority to defend the United States and its citizens. He does not have to come to Congress on bended knee and beg for that authority. It is his; he is Commander in Chief. But when he crosses that line and no longer is defending us, but rather is pushing forward in an offensive capacity, saying that we are now going to invade a nation, we are now going to try to secure a certain objective or target, beyond a defensive objective, then the Constitution is clear: That is not his decision to make; it is our decision to make. Better yet, it is your decision to make--to speak to your elected Representatives in the House and Senate and to express your heartfelt feelings.

I can recall the debate over the Persian Gulf war. There was quite a division within the military, and even within Congress. But I don't think there was a finer moment in the 16 years I have served on Capitol Hill than that period of time when each Member of the U.S. Senate and the House came to the floor and took all the time necessary to speak their hearts about whether or not we should put our children in harm's way to stop this aggression by Saddam Hussein.

I can speak for myself--and I am sure for many colleagues, Republicans and Democrats alike--there were sleepless nights when you knew that a vote to go forward and commit our troops in an offensive capacity was going to lead to the loss of life. It was a painful decision, but it is one that I accepted, and everybody as a Member of the House and Senate accepted as well.

I say to my colleagues in the U.S. Senate, who I hope are following this debate, that this is about whether or not the oath of office that we took is meaningful. When we swore to uphold the Constitution of the United States, I don't believe they asked us to turn to Article I, section 8 and make an amendment to take it out. No, it was included. It was part of that responsibility--an awesome responsibility.

My friend, the Senator from Alaska, has raised a procedural point. He says that this is beyond the scope of an appropriation or a spending bill. I disagree with his conclusion on that. I have seen what is considered authorizing language and much more expansive language easily adopted on the floor of the Senate and in the House time and time again. So I hope that those who vote on the amendment will vote on it on all fours, straightforward, up or down; do you agree or disagree? Do you agree with our Constitution, which says this is our responsibility in Congress to declare war? Or are you prepared to accept the drift that has gone on for half a century now, which says we will continue to give more and more power to the President to make this decision?

If you should decide this is the President's province and we are going to cede all of our constitutional authority, mark my words, you should think twice before you come to the floor of the Senate--or our colleagues in the House--and question when the President uses this authority, because if you are not prepared to say that we accept our responsibility under the Constitution, that we will stand up and decide and vote when it comes to putting our troops in harm's way, then I think you may have forsworn any opportunity to come to this floor and second-guess the President--a President who uses the power that we have handed to him.

As I have said in previous moments in this debate, there is no sadder moment than going home to your State or district and facing a casket, draped with a flag, of a fallen soldier, sailor, airman or marine and then facing that family. I believe that it is our constitutional responsibility to be part of the decisionmaking that leads to military action. It will not be an easy task. It will be a tough burden, but it is exactly why we have stood for office and why we have asked to represent our States.

I hope my colleagues in the U.S. Senate will support this amendment. I believe this is straightforward and honest in its approach. I believe that as you consider the possibilities just in the weeks ahead--perhaps even while we are gone over the August recess--that there may be an effort in the Bosnian region, in Kosovo or some other place, to assert and take offensive military action. Those who have voted against this amendment tonight will not be able to say the President should have called on us first, because that is what this amendment says. This amendment says anywhere in the world where the President wants to take offensive military action--not to defend the property and the persons of America, but offensive military action--he is bound by the Constitution of the United States.

Mr. President, I believe my time has expired. I yield the remainder of my time.

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Mr. STEVENS. Mr. President, I ask that the text of the amendment be placed before both parties on the appropriate table.

I move to table the amendment of the Senator from Illinois and ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. The question is on agreeing to the motion of the Senator from Alaska to lay on the table the amendment of the Senator from Illinois. On this question, the yeas and nays have been ordered, and the clerk will call the roll.

The legislative clerk called the roll.

Mr. NICKLES. I announce that the Senator from North Carolina (Mr. Helms) is absent because of illness.

I further announce that, if present and voting, the Senator from North Carolina (Mr. Helms) would vote `aye'.

The PRESIDING OFFICER (Mr. Frist). Are there any other Senators in the Chamber who desire to vote?

The result was announced--yeas 84, nays 15, as follows:

Rollcall Vote No. 251 Leg.

[Rollcall Vote No. 251 Leg.]

YEAS--84

NAYS--15

NOT VOTING--1

The motion to lay on the table the amendment (No. 3465) was agreed to.

Mr. STEVENS. Mr. President, I move to reconsider the vote.

Mr. ROBB. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

CHANGE OF VOTE

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to change a vote. On the last vote, I voted `nay.' I meant to vote `yea.' The vote will not affect the outcome. I did not realize it was a tabling motion. I ask unanimous consent to change my vote.

The PRESIDING OFFICER. Without objection, it is so ordered.

(The foregoing tally has been changed to reflect the above order.)