National Defense Authorization Act for Fiscal Year 2018 - Motion to Proceed - Continued

Floor Speech

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Mr. President, I rise to speak about the pending NDAA. In particular, I rise to speak about an amendment that has been previously discussed on the floor that is being offered by the Senator from Kentucky, Mr. Paul, that deals with the current authorizations for use of military force that are justifying American military action in Afghanistan, Iraq, Syria, and numerous other countries.

The authorizations that currently support military actions were passed in 2001 and 2002. About a quarter of us were here and voted on those. Three-quarters of us have joined either the Senate or the House since those authorizations have been voted on. What that means is that we have American troops who are deployed in harm's way, that thousands have been killed, that thousands have their lives at risk right now, and that three-quarters of Congress has never voted to support the military operations that are currently underway. Many of us support them or support them with recommendations or reservations or qualifications, but three-quarters of us have never cast a vote.

These authorizations are, respectively, 15 and 16 years old. The authorizations have, essentially, been interpreted in a very broad way--first, by the Bush administration; second, by the Obama administration; and now by the current Trump administration. I would argue that the current interpretation of the authorizations would essentially allow, without any approval from Congress, an American President to wage war anywhere against any terrorist group for however long he wants to.

That was not the intention of the authorizations when they were originally drafted. If you were to go back and talk to those who had been here and cast their votes in 2001 and 2002, they would say that it was completely beyond their contemplation that what they were voting for then, which was going after those who had attacked the Pentagon--9/ 11 was yesterday--and the World Trade Center, would 16 years later still be used to support military action in a total of 14 countries in 35 separate instances having been declared by the last three administrations.

Senator Paul has an amendment on the table, and the amendment is this: to sunset the 2001 and 2002 authorizations in 6 months as a mechanism for forcing Congress to finally do the job of having a debate and defining the legal authority of the military mission that we are currently engaged in and putting a senatorial and congressional thumbprint on the mission so that those who are risking their lives know that they are doing so with a political consensus by the American political leadership here in Congress. I am supporting Senator Paul's amendment.

I think it is way past time for Congress to take this up and for everybody to be on the record. I think that our allies need to know whether Congress supports the American military missions that are currently underway. I think that our adversary needs to know that there is a congressional resolve, not just an Executive resolve. Most importantly, I think that the American troops who are deployed in harm's way every day deserve an answer to the question of whether Congress is behind them.

I came to Congress being very focused on this and to the Senate in January of 2013. I gave my first speech about it on the floor in the summer of 2013, when President Obama expanded the military action against al-Qaida to also incorporate military action against ISIS, which did not form until 2 years after the 9/11 attack. I filed my first military authorization, seeking to get Congress on board and to send to the troops the message that we supported them. That was now almost 3 years ago. I was once able to get a vote on an authorization in the Foreign Relations Committee. It passed out of committee but died for lack of any action on the floor.

Since 2015, out of a thought that we should try to be at least as bipartisan as we could in putting support behind the troops and carrying out our article I responsibilities, Senator Jeff Flake of Arizona and I have worked together, first, in introducing in 2015--and then in reintroducing this year--an authorization for use of military force. We have a pending authorization that we filed in June, which has been pending in the Foreign Relations Committee, to set forth a military authorization with certain conditions to undertake and legally justify military action against al-Qaida, ISIS, and the Taliban. That has been pending in the Foreign Relations Committee, but there has been no particular motive or forcing mechanism that has made the committee take this up, bat it around, hear from experts, debate it, amend it, and send it to the floor.

I think, of all of the powers that Congress has, the one that we should most jealously guard is the power to declare war. James Madison was the drafter of the Constitution, and he gathered great ideas from others. The 230th anniversary of the drafting of the Constitution is this Sunday, September 17--Constitution Day in Philadelphia. The Constitution was a great collection of wonderful ideas, many that had been tried out in other nations, but the genius of it was the way in which we got the best of the best and tried to put them together in the document.

It has been said by many historians that there were only about two items in the Constitution circa 1787 that were truly unique and that we were doing for the first time. One was the protection of the ability of the people to worship as they pleased without preference or punishment, which had been drawn from a statute that had been passed in Virginia in 1780, the Statute for Religious Freedom. The second idea that was very unique to our country and was, really, an effort by the Framers of our Constitution to change the course of human history was the idea that war should only be initiated by Congress and not by the Executive.

The Framers of the Constitution knew in 1787 about Executives and Executive overreach, especially in matters of war. They knew Kings, Emperors, Monarchs, Sultans, and Popes, and they knew that that was how war started. Madison decided that we were going to do it differently, and the Framers and those who voted in Philadelphia agreed with him. The Constitutional Convention's minutes that were taken by Madison and others demonstrated what they were trying to do.

Madison explained it in a letter to President Jefferson about 10 years later, when Jefferson was grappling with questions of war. Madison wrote in the letter that our Constitution supposes what the history of all governments demonstrate--that it is the Executive that is most interested in war and, thus, is most prone to war. For this reason, we have, with studied care, placed the question of war in the legislature. Madison was trying to change it so that war could not be initiated without a vote of Congress.

In my view--and I was tough on a President of my own party about this--when President Obama decided to initiate offensive military action against ISIS in August of 2014, I said: You must come to Congress. When President Trump used military might--in this instance, weapons against Syria--to undertake the laudable step of punishing the use of chemical weapons against civilians, I said: I will support you with a vote, but you cannot do that without Congress. That is because there is nothing in the authorizations that are currently pending that allow the United States to take military action against the Government of Syria.

Yet we have gotten so sloppy about this. Frankly, we have been sloppy about it just about since 1787. If I can be blunt, throughout our history, regardless of party--Whig or Federalist, Democrat or Republican--Members of Congress have often concluded that a war vote is a very difficult vote and that, if we could allow the President to initiate it without a vote, we might be politically insulated from the consequences of the vote. That has been a uniform trend, and it has been a nonpartisan one. That is one of the reasons that we are where we are right now in Congress's being reluctant to take up war votes. These are difficult votes.

I have been on the Foreign Relations Committee since January 2013 and have cast two votes for military action--first, against Syria for using chemical weapons in the summer of 2013 and, second, in the matter that I mentioned earlier in voting for a war authorization against ISIS in December of 2014. I will say that there is no vote that you will ever cast that is harder.

I come from a State with a great military tradition. More people in Virginia are connected to the military--either as Active Duty, veteran, Guard, Reserve, DOD civilian or military contractor or military family--than in any other State. One of my children is a Marine infantry commander. Any war vote--if not immediately, then prospectively--affects him and the people whom he works with and cares deeply about.

These are very, very hard votes. They are supposed to be hard, but that is no reason to duck them. Congress is supposed to take this up, not hand any President of any party a carte blanche to go to war without a vote of Congress. Even against bad guys like ISIS or even against a Syrian dictator who is using chemical weapons against civilians, we are not supposed to be at war without a vote of Congress.

So I am here to support Senator Paul's amendment, which would take these old and outdated authorizations and sunset them within 6 months. I view his amendment as being an attempt to force Congress to do what it should do, which is to have a debate anew after 16 years and come up with a crafted legal authority and appropriate strategy for carrying out military actions against nonstate terrorist groups.

I applaud my colleague from Arizona, Senator Flake, because he and I have worked together very hard on this issue. We have a matter that is pending. If Senator Paul's amendment passes, the result of his amendment will be that the Senate Foreign Relations Committee and this body will have to grapple with what is an appropriate authorization circa 2017 to replace the authorizations from 2001 and 2002.

We shouldn't be afraid of that discussion. We should relish it and protect the power of Congress to decide when we will and will not be at war. I believe the version that Senator Flake and I have introduced, that was introduced in June, is a good-faith effort to listen to all and craft a compromise going forward.

I will close and say what I have said already. I think Congress should not only do this because we are constitutionally required to-- and waging war without an authorization poses all kinds of legal challenges that I think are significant; that it is constitutionally required should be enough--but I actually really like the reason. I like the reason for the constitutional provision.

Madison and the Framers concluded that we should not order men and women into combat, where they are risking their lives and their health, if there is not a political consensus by the elected leadership of the country that the mission is so worth it that we can fairly ask them to risk their lives. If we are afraid to cast a vote because, oh, it is too unpopular or it could be too challenging, how can we stand up and say we are going to duck that responsibility when the consequence of war is that volunteers are being deployed and potentially injured and killed?

I will close and just say it seems to me that the sacrifice of the millions who serve Active, Guard, and Reserve--of the thousands who are deployed overseas in theaters of war right now--their sacrifice should call upon us to have a debate and do the job we are supposed to do.

If the Paul amendment passes, I look forward to working especially with my colleague from Arizona and my colleagues on the Armed Services Committee and colleagues on this floor to have a debate, have a vote, and send a strong message to terrorist groups, to our allies--but especially to our troops--that the article I branch of the U.S. Government has a resolve and supports them.

With that, I yield the floor.

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