Executive Session

Floor Speech

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Mr. KAINE. I thank the majority leader for his kind words.

WAR POWERS RESOLUTION OF 1973

Mr. President, I rise in order to note an important anniversary. Forty years ago this week the Senate passed the War Powers Resolution of 1973. The resolution was passed in a time of great controversy--during the waning days of the Vietnam war. The purpose of the resolution was to formalize a regular consultative process between Congress and the President on the most momentous decision made by our Nation's Government--whether to engage in military action.

The question of executive and legislative powers regarding war dates back to the Constitution of 1787. Article I, section 8 of the Constitution provides that ``Congress shall have the power ..... to declare war.'' Article II, section 2 of the Constitution provides that the President is the ``Commander in Chief'' of the Nation's Armed Forces. In the 226 years since the Constitution was adopted, the powers of the respective branches in matters of war have been hotly debated. In a letter between two Virginians in 1798, James Madison explained the following to Thomas Jefferson:

The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch most interested in war, and most prone to it. It has accordingly, with studied care, vested the question of war in the legislature.

Madison's definitive statement notwithstanding, the intervening history has been anything but definitive. Academics and public officials have advanced differing interpretations of the constitutional division of power. There is no clear historical precedent in which all agree the legislative and executive branches have exercised those powers in a consistent and accepted way. And the courts have not provided clear guidance to settle war powers questions.

Some facts, however, are very clear. The Congress has only formally declared war five times. In many other instances, Congress has taken steps to authorize, fund, or support military action. In well over 100 cases, Presidents have initiated military action without prior approval from Congress.

Congress supposed 40 years ago that the War Powers Resolution of 1973 would resolve many of these questions and establish a formal process of consultation on the decision to initiate military action. But this was not the case. President Nixon vetoed the resolution, and while Congress overrode the veto, no administration since has accepted the constitutionality of the resolution. Most recently, President Obama initiated American involvement in a civil war in Libya without congressional approval. The House of Representatives rebuked the President for that action in 2011. But the censure rang somewhat hollow because most legal scholars today accept the 1973 resolution is an unconstitutional violation of the separation of powers doctrine.

So why does this matter? We are in the 12th year of war. The attack on our country by terrorists on September 11, 2001, was followed 1 week later by the passage of an authorization for use of military force that is still in force today. The authorization is broadly worded and both the Bush and Obama administrations have given it an even broader interpretation.

In recent hearings before the Senate Armed Services Committee, administration officials expressed the opinion the authorization of September 18, 2001, might justify military action for another 25 to 30 years in regions spread across the globe against individuals not yet born or organizations not yet formed on 9/11. This was likely not contemplated by Congress or the American public in 2001.

Congress is currently grappling with the status of the authorization and whether it should be continued, repealed, or revised. We face immediate decisions about the reduction of American troops in Afghanistan and the size of a residual presence we will leave in that country to support the Afghan National Security Forces. We are wrestling with the scope of national security programs that were adopted in furtherance of the authorization, and we are engaged in serious discussion about new challenges--from the rebellion in Syria to growing nuclear threats in Iran and North Korea.

All of these issues are very hard. I recently returned from a trip to the Middle East--a codel sponsored by Senator Cornyn. Accompanying us were Senators COCHRAN, SESSIONS, BOZEMAN, FISCHER, and in Afghanistan, Senators MCCAIN and GRAHAM.

In Turkey and Jordan we heard about the atrocities committed by the Asad regime in Syria and the flood of refugees pouring into those neighboring countries. In Afghanistan we met with our troops and heard about the slow transition from NATO forces to Afghan security. In the United Arab Emirates we discussed the growing threat of Iran throughout the region, and we made a meaningful stop at Landstuhl Regional Medical Center in Germany to visit recently wounded Americans--and NATO partners--who have sacrificed so much in this long war against terrorism. In the voices of our troops, our diplomats, our allies, and our wounded warriors, we heard over and over again a basic question: What will America do?

Answering this question isn't easy, but I believe finding answers is made more difficult because we do not have any agreed-upon consultative process between the President and Congress. The American public needs to hear a clear dialogue between the two branches justifying decisions about the war. When Congress and the President communicate openly and reach consensus, the American public is informed and more likely to support decisions about military action. But when there is no clear process for reaching decision, public opinion with respect to military action may be divided, to the detriment of the troops who fight and making it less likely that government will responsibly budget for the cost of war.

I believe many more lawmakers, for example, would have thought twice about letting sequestration cuts take effect if there had been a clear consensus between the President and Congress about our current military posture and mission.

So at this 40th anniversary, I think it is time to admit that the 1973 resolution is a failure, and we need to begin work to create a practical process for consultation between the President and Congress regarding military action.

In 2007 the Miller Center at the University of Virginia impaneled the bipartisan National War Powers Commission under the leadership of former Secretaries of State James Baker and Warren Christopher. The Commission included legislative, administrative, diplomatic, military, and academic leadership. The Commission issued a unanimous report to the President and Congress urging the repeal of the War Powers Resolution and its replacement by a new provision designed to promote transparent dialog and decisionmaking. The Commission even proposed a draft statute, preserving the constitutional powers of each branch while establishing a straightforward consultative process to reach decision in a way that would gain support from the American public. The House and Senate Foreign Relations Committees held hearings on the report in 2008, but the time was not yet right for change.

I believe the time for change is upon us. We struggle today with urgent military decisions that demand better communication between the President, Congress, and our citizens. President Obama has discussed this very need during his 2013 State of the Union Address and also during his recent speech at the National Defense University.

As we reach the 40th anniversary of the failed War Powers Resolution, Senator John McCain has agreed to work with me to form a group of Senators committed to finding a better way. Senator McCain and I serve together on both the Armed Services and Foreign Relations Committees. I have profound admiration for his service to this country, both as a military veteran and a veteran Senator. I am a newcomer, but veterans and newcomers alike have an interest in finding a more effective process for making the most important decision that our government ever makes--whether to initiate military action. We can craft a process that is practical, constitutional, and effective in protecting our Nation. We owe this to those who fight, and we owe this to the American public.

Mr. President, I yield the floor, and I suggest the absence of a quorum.

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