September 28, 1990
Congressional Record - Senate: Pages 26,502 - 26,507
The PRESIDING OFFICER (Mr. AKAKA). The Senator from Oregon is recognized.
Mr. HATFIELD. Mr. President, first, I express my appreciation to the Senator from Washington State for his very thoughtful presentation and for his pointing up very important issues that should be considered in this resolution.
Mr. President, will the chairman of the Senate Foreign Relations Committee yield for some questions?
Mr. PELL. Certainly.
Mr. HATFIELD. I thank the Senator. First, I would like to ask the Senator, has the Foreign Relations Committee considered this resolution?
Mr. PELL. We have discussed it. But it has not been on the agenda.
Mr. HATFIELD. Also, will the Senator indicate whether or not the House resolution that passed, I believe, last night was then considered by the House Foregin Relations Committee?
Mr. PELL. My understanding is that it was.
Mr. HATFIELD. It was?
Mr. PELL. Yes.
Mr. HATFIELD. If the Senator will yield for a further question, has the Senate Foreign Relations Committee considered the War Powers Act as it might apply to the current circumstances in the Mideast?
Mr. PELL. It has not.
Mr. HATFIELD. It has not. Will the Senator indicate perhaps why the Senate Foreign Relations Committee has not considered the War Powers Act or any other resolution relating to this particular situation in the Mideast?
Mr. PELL. Events have moved pretty fast. We have considered the resolution that came up which was have before us, now, for example, the resolution on the Saudi arms sale. Most of the individuals have been thinking about it. Some of us have even been out in that part of the world looking around. We have not come to a conclusion except along the lines of the resolution that we have put, but we agree with what the President has done to date, but we are raising some questions, waving some flags concerning the future.
Mr. HATFIELD. Does the chairman have any item that he has programmed for the agenda, either in the closing days of this session or early next session, on the War Powers Act or on the Mideast situation?
Mr. PELL. Not on the War Powers Act, per se, but, on the Mideast situation, we have, as I mentioned earlier, coming up to the Saudi arm sales amendment. We also have the Iraq sanctions.
As the Senator knows, our committee reported out legislation imposing sanctions on Iraq, and the Senate has four times approved in the last 2 years legislation calling for application of sanctions on Iraq, which very much covered the same subject. I believe if that had passed the Congress and the President had not opposed it, that would have waved a flag of warning on Saddam Hussein , which might have avoided the invasion into Kuwait.
Mr. HATFIELD. The chairman recognizes this as the situation we are not discussing on this vehicle. Does the concurrent resolution that embodies the current Middle East situation that we are discussing have any force of law?
Mr. PELL. The force of law, as the Senator well knows, is the expression of the sentiment of the Congress at this time. For many reasons, I would prefer to see a joint resolution which requires, as you know, the signature of the President and does have the force of law.
The problem with that, though, is that then we might want to change the concurrent resolution in the future, if there is some action on the part of the administration which we did not approve, and it would be much more difficult to that if we passed a joint resolution.
Mr. HATFIELD. If the Senator would yield further, I want to emphasize and underscore what the Senator has just said. The current resolution that we are considering is a concurrent resolution.
Mr. PELL. Correct.
Mr. HATFIELD. With no force of law.
I hold here in my and a copy of the Gulf of Tonkin resolution as it related to the Vietnam war which, as the Senator already indicated, was a joint resolution requiring the signatures of the President and therefore it had the full force of law, is that correct?
Mr. PELL. Correct.
Mr. HATFIELD. Does the concurrent resolution put any requirement upon the President or the executive branch of our Government to adhere to the War Powers Act?
Mr. PELL. It does not.
Mr. HATFIELD. It does not.
I thank the Senator. I appreciate the chairman of the Senate Foreign Relations Committee making these responses because, Mr. President, for the record, I want to emphasize the fact that this is September 28, 1990. And on this day, for the first time, the Senate of the United States has a vehicle, a legislative vehicle, known as a concurrent resolution, which merely expresses an opinion, which merely expresses an attitude of the Senate with no force of law. And yet, it provides us with a vehicle to engage in Senatorial discussion, debate, and observation on a crucial and dangerous situation that confronts this country in the Middle East, upon which conditions we have seen fit, through executive order and executive power and executive responsibility, fully and appropriately exercised under the Constitution of the United States, to dispatch over 100,000 American troops, September 28.
Senator ADAMS, from Washington State, a few moments ago recited the very brief history of the War Powers Act which followed the longest war in American history, one of the bloodiest wars in American history, which, under the Constitution, never carried with it a declaration of war. At most, it had a joint resolution of support, passed by the Congress with two dissenting votes only in the U.S. Senate on August 10, 1964.
Following the Vietnam war, the Congress pledged itself, no more Vietnams. Never again will Americans be dispatched to conduct military war purely and exclusively under the authority of the Commander in Chief of the armed services - and the President of the United States has that position that he occupies, given to him by the Constitution - without a partnership role of the U.S. Congress, and something more than a blank check that was handed to the President of the United States in the Gulf of Tonkin resolution.
This was a blank check. Why? Because the Congress did not want to assume any definitive responsibilities, responsibilities imposed upon the Congress by the U.S. Constitution. This was a monumental, historical legislative branch dodge. It provided everybody with ample cover. The war at that time seemed to be going reasonably well. Give the President a blank check and we abdicate.
I can remember Members of the Congress later on trying to figure out, how did they ever vote for the Gulf of Tonkin resolution. I am proud to say one of my predecessors from the State of Oregon was one of the two votes against of Tonkin resolution, the late Senator Wayne L. Morse.
But, believe me, all you have to do is go back and read the CONGRESSIONAL RECORD. Every night on television on the news, Senators were crowding in line to be able to say something that would try to disassociate themselves with the Gulf of Tonkin resolution that they had voted for, when things went from bad to worse.
So then the Congress, in its wisdom, said, we will make certain that any future international crisis will not end up making a Presidential war out of it, but we will exercise a partnership role, and we passed the War Powers Act. And what did that War Powers Act say? It said a number of things, but let me just go into one or two points.
It said that if the President of the United States determined there was some emergency to which he should dispatch American troops, he could do so under his constitutional responsibility. Of course, nobody was trying to take away or circumscribe or diminish any Power given to the President under our Constitution. But it said within 60 days there had to be some action on the part of the Congress. The President had to, first of all, send a notification, a statement, a letter to the Congress indicating why he sent such troops and the justification for it. Notification, that is all; information. That would trigger the action thereby which the Congress would have to come in and say, "Within this period of time, at the end of this 60 days, you bring those troops home, Mr. President."
Or, the Congress could say, "Mr. President, we authorize that action that you have taken under emergency circumstances," putting the Congress on record in a partnership with the President.
Or the Congress could say, "Mr. President, we extend that time of those troops to be there another 60 days and we will reevaluate, we will reassess the situation with you, in partnership with you, after the end of the extended period of 60 days," as an example.
But it forced the Congress to take that action so that we did not dump on the President with a blank check, which this resolution could well be considered as a further abdication of basic responsibility of the Congress to engage in partnership.
This is not a challenge to the President for which I rise today. This is a challenge to this body, the U.S. Senate, that, as the chairman of the Foreign Relations Committee said, this has no force of law - no force of law. We might as well have typed out our news release and gone down and handed it to the press, for it has no more force of law than a news release that may state our position or our opinion.
Why, why do we avoid our responsibilities that we defined for ourselves and passed, in spite of a President's veto, into law? Our Committee on Foreign Relations has not even considered the War Powers Act. This resolution was not even a product of the Foreign Relations Committee. And now, only a few days before the adjournment sine die of this Congress, we are going to state a public opinion. Then we could go home and say we have approved of the actions under a resolution that has no force of law. In fact, it creates more confusion than it clarifies, in my view.
We can somehow be absolved of any situation that may evolve during the period between this Congress sine die adjustment and the new Congress that does not convene until mid-next January 1991. No congressional role; no check and balance; no review; no assessment; and, let us pray, that we have no war.
It is not the first time the Congress has played the role of The Artful Dodger of its responsibilities. Since 1965, to get just a point of reference, there have been 28 instances of the use of U.S. troops abroad. Only twice in those 28 instances did the Congress take authorizing legislation; only twice. One was when the military personnel were deployed to the multinational force on the Sinai. That was authorized by the Congress in 1982 under Public Law 97-132. And Congress authorized the participation of Marines in a multinational force in Lebanon for 18 months under Public Law 98-119, September 29, 1983.
Of the 28 instances of use, 13 were combat-type situations: Shooting down jets, bombing military facilities, et cetera. Yet we play around with semantics, again, because on the third page of this nonbinding, toothless piece of legislative craftsmanship, it says on line 4:
"The Congress supports continued action by the President in accordance with the decisions of the United Nations Security Council and in accordance with the United States constitutional and statutory processes - "
Mr. President, get these words -
" - including the authorization and appropriation of funds by the Congress, to deter Iraqi aggression and to protect American lives and vital interests in the region."
What are they authorizing? What are they appropriating? I defy anybody to tell me. What are vital American interests in the region? That would be about a C minus in a English comp course, as far as clarification of writing.
Mr. President, I think it is also very interesting that five times, in five instances, U.S. troops were used abroad in a period of congressional recess. Congress was not in session.
May 1989. American troops were used to bolster the unstable political circumstances in Panama.
December 1, 1989, U.S. fighter planes gave cover to Mrs. Aquino’s troops as they successfully fought a coup attempt. There was no Congress authorization given. Congress was out of session at the time.
December 19, 1989, the United States invaded Panama, apprehended General Noriega, and installed a new President who had been elected earlier but had not been allowed to take power. No congressional authorization was given. Congress was out of session at the time.
August 5, 1990, U.S. Marines moved in quickly to rescue Americans being threatened by the Liberian civil war.
No congressional authorization was given. Congress was out of session at the time.
August 8, 1990, the President ordered United States troops to Saudi Arabia to defend that country from the threat of invasion by Iraq. This is the largest deployment of the U.S troops in this time span. No congressional authorization has been given. The Congress was out of session when the troops were committed.
That is just a few points of history. There are no conclusions to be drawn from them except to indicate we, the Congress, have found it most convenient and certainly we have almost developed a skill of letting foreign policy move along, independent and with no fingerprints from the Congress, until things may go sour. And, like the Gulf of Tonkin resolution when only two Senators voted against that, and that began to go downhill, how quickly Members of the U.S. Senate tried to dissociate themselves, tried to remove their fingerprints. It was an unpopular war. They did not want anything to do with it - under a joint resolution - in which obviously they had some pretty well defined fingerprints that at least President Johnson could have in the air, to the national labor conventions and to the national businessmen’s conventions and all of the public appearances that he made, that the Congress supported the Vietnam war.
But, remember again the Congress said never again. Yet 28 times since 1975, when the Congress should at least consider the action being taken by the Chief Executive - what came forward? Not any kind of action of responsibility.
People will say: But the Presidents do not like the War Powers Act. President Nixon vetoed it. We passed it over his veto. Every other President has denounced it because the lawyers that surround the President tell him, "This is an invasion of your rights." I sometimes wish we could get the lawyers at least on a furlough, for just maybe a few days, to see how things might function without that control factor.
I am convinced if the political advisers surrounded the President and said: Mr. President, get the Congress on board early, then they cannot throw rocks at you if it does not work out right - I would think the President of the United States, in conducting this foreign policy - and of course, how can we speculate unless we know, but at least I will identify this as speculation - would feel that it is far better to have the would-be rock throwers inside than outside of a policy.
Nevertheless, the Presidents have not chosen to activate or to trigger the War Powers Act. But, Mr. President, that does not bind the Congress. That does not prohibit the Congress from activating the War Powers Act by some direct force of resolution or vehicle that has force of law. Even if it is vetoed by the President.
But we have chosen to ignore it. We are not going to address the War Powers Act. Eight days ago, as I say, I took this floor to raise the War Powers Act. Senator MOYNIHAN has raised the issue. Senator KERREY of Nebraska has raised the issue. Others have raised the issue.
If we choose not to take any action and to continue to dodge our responsibilities, then for God’s sake, let us be honest. Let us introduce a resolution or action to repeal the War Powers Act; get it off the statute books. For, as long as it is on the statute books we create hypocrisy. We engage in hypocrisy. We are the embodiment of hypocrisy. Besides bad politics.
I suppose, like many other things that happened in the Senate, maybe we are just as well off talking into a mirror.
But, Mr. President, I know, like many of my colleagues, we have a conscience also that must be talking to us. I would hope that at some point in time, as we are contemplating a concurrent resolution that establishes no responsible role for the Congress, which is a press release for the Senate, that is about all it is; it is a press release - that we go home sine die and face our constituents, if we are candidates or to face our constituents in our accountability and in our reporting role. I hope that all of us, for many reasons, will just pray and keep our fingers crossed that nothing happens that makes this more serious than what it is, and, believe me, it is so serious today that I think we should have weeks ago taken action that I am calling for again today, something more than this press release because there will again be a big scramble if something happens that triggers action of a military type of, where is the Congress? Where were the representatives of the people? What were they saying?
Oh, I know, many follow the Walter Lippman role by which he said one time in trying to stimulate some action, when everybody is thinking alike, no one is thinking very much. I sort of feel that we have put our thinking process into neutral, as it relates to a thinking process that leads to action in establishing our responsible partnership role with the President in the Persian Gulf.
Mr. President, I have made no comment up to this point on the merits of the case of our presence in the Middle East. I have not raised one word of criticism against President Bush. I think President Bush has been applauded by overwhelming numbers of American people for taking decisive action, and that can be debated whether he sent troops too quickly or whether he took too many troops into the Middle East. That can all be debated on the merits. That is not the issue at this moment in time on this vehicle and on what I am trying to point out. The issue is whether we should take our responsible role.
Mr. President, while there is not great competition here for the floor, I will yield shortly. I see the Senator from Pennsylvania, who I assume is here to take the floor, but I would like to make one additional observation.
I hope that unlike the Vietnam situation where people did not even want to ask questions because they were fearful of having their patriotism attacked, that we are courageous enough to ask questions as to the events and causes that we are there representing today. What is the American interest in the Middle East? What is this high risk that we are taking? What are we defending in the Middle East? What is the real purpose of our presence in the Middle East? Is it to protect and rescue a struggling democracy for the sake of free people? Hardly. Hardly. I do not think anyone would accuse any of those Middle East States as being democracies or on the road to democracy. They are autocracies - friendly, and certainly not threatening their neighbors, except Iraq’s action.
Why are we in the Middle East today? O-i-l; oil. Oil politics, oil dependency. Oil, oil is why we are in the Middle East. President Nixon put the world on a nuclear alert during his administration. Why? To protect our oil supply in the Middle East. Secretary of State Kissinger, under a Republican President, and Secretary of Defense Brown, under Jimmy Carter, a Democratic President, both said publicly under crises of their time in the Middle East, yes, we would consider using tactical nuclear weapons to protect our oil supply.
Let me also remind ourselves that the threshold between tactical nuclear weapons and strategic nuclear weapons begins to fuzz, fuzz that distinction when we have launched our tactical nuclear weapons.
Those are the high risk stakes that are involved, both then and now. Oh, I could go back and recount two. Do my colleagues know what one of the major motivating forces of Pearl Harbor was, what led up to Pearl Harbor? One of the major driving forces of Pearl Harbor was oil. People forget we were a net exporter of oil and that Japan then, as now, could not produce her oil requirements and we were the suppliers of oil for Japan. She had been engaged in a 10-year war with China. She now was in her expansion in Southeast Asia and President Roosevelt said stop the expansion or we will cut off your oil supply.
The military Government of Japan had to look around the globe and the closest oil supply to replace the American oil was Indonesia. We then called it the Dutch East Indies. But there was only one impediment, one obstacle between the Japanese in Japan and that government and that need for oil and the oilfields of Dutch East Indies, and that was American military force in the Philippines. That American ground military force and Air Force was protected by the naval forces in Pearl Harbor. If they eliminated those military forces in the United States, they had a straight shot to the oil-fields of the Dutch East Indies.
That was the high risk that Japan was willing to take pre-World War II of American involvement in order to secure oil.
You can track some of the strategy of Adolf Hitler going West and going south in quest of oil; that military commanders in terms of military science, were not that supportive, but the oil drove these high risks.
I only mention this as relates to the Middle East because we have yet to develop a comprehensive energy program for this country. And when we were then facing the Arab boycott at 37-percent import, today 50-percent import, in other words, our dependency has been increasing and then we had a President of the United States who advocated and recommended the abolition of the Energy Department of the Government, conveying the idea that even the Energy Department was not of significance. And we have yet, under Republican and Democratic administrations, to address the very cause of why we have over 100,000 troops in the Middle East today by not having a comprehensive energy program that would get us off the oil dependency and have tax credits for renewable resources. At the same time, we do not know what our left hand knows what our right hand is doing, for as we face the left hand on the environmental front, our constant policy is not even to explore possibilities of short-term supplies; lock them up, and at the same time failing to move ahead with renewable sources and other kinds of energy.
So I just want to add that as an addendum. For notwithstanding whatever this vehicle may say or not say, we ought to at least start addressing the causes and the reasons that put us into this kind of a military situation in the Middle East, as well as to accept the responsibility we have under statute. I yield the floor
Mr. PELL. Mr. President, the administration did submit its own joint resolution a few days ago, but as we looked it over we realized it had been drafted by someone looking at the Gulf of Tonkin resolution. They actually patterned the administration resolution on the original Gulf of Tonkin resolutin which, as we know, was a joint resolution.
The administration draft was not as precise as it might have been. For example, the administration cited U.N. Resolution No. 663 as one of the legal justifications for its deployment in the Persian Gulf. Actually, No. 663 provides for the admission of Liechtenstein into the United Nations.
Our resolution, as we drafted it, was done with great care. Intentionally it is not a joint resolution as originally proposed by the administration. It is very different in form, substance, and words from the Gulf of Tonkin resolution.
I agree there should be specific statutory authorization for our deployment in Saudi Arabia, in the Persian Gulf, and to enforce the United Nations Security Council resolutions. However, there is no consensus on the nature of an authorization at this time. I would hope we could find a consensus. It is very important that we do.
In the interim, though, I think the concurrent resolution that we have drafted has been a useful expression of support for our policy of working through the United Nations.
I would note, too, that our Foreign Relations Committee was intimately involved in the drafting of this concurrent resolution. At the request of the Democratic and Republican leaders, our committees agreed to floor consideration without referral to the committee.
This is a very timely resolution, and I believe the leadership request was a reasonable one.
Mr. HEINZ. Mr. President, while I rise in support of the pending resolution, and will vote for it, I associate myself with the comments of the Senator from Oregon [Mr. HATFIELD] who was one of the original framers of the War Powers Act. I do so because, like a number of my colleagues, I believe that the War Powers Act does apply in this instance; that even if one concluded, based on a different assessment of the facts, that it did not, the spirit of the War Powers Act, given the enormity of our deployments, must surely apply.
Third, it is important for the President to take full advantage of the opportunity presented at this time for thoughtful and informed debate, not inflamed by the passions of the moment either pro or against proceeding under the War Powers Act.
I was 1 of 15 Senators privileged over the Labor Day weekend to visit the Persian Gulf, and in my judgment the conditions in which our sailors, soldiers, marines, and airmen are arrayed meets the test of a combat deployment and meets, most importantly, the condition in the War Powers Act that there be imminent danger.
To be on the deck of the battleship, the U.S.S. Wisconsin, and to see posted near the bow of the ship on either side, on the port and starboard side, two sailors, each manning loaded .50-caliber machine guns, eyes intent on the horizon, being warned to be ready to fire on any torpedo boat, any small craft that might be trying to get close enough to launch a torpedo, a rocket, or to blow itself up and attempt thereby to damage this warship, clearly suggests to even the most casual observer that this is not business as usual.
Similarly, to visit, as I was privileged to, our marines at a location about 127 miles away from the Kuwaiti border at an outpost somewhere near Al Jubayi and, to see them in the process of laying mines, a variety of mines, anti-tank mines, antipersonnel mines, and others in a variety of deployments, establishing what are called in the military “kill zones,” gives you the sense that this is not a training exercise. This is very much for real. And to know that there were pointed in our general direction a variety of weapons, including ground-to-ground Scud-B missiles, you cannot help but come to the conclusion that the tests of the War Powers Act had been met and therefore it is appropriate for the President to observe it because it, is the law, even if one were to disagree with my own personal conclusions, the facts and circumstances, the tests of the War Powers Act being met in effect in and around the Persian Gulf.
As the Senator from Oregon mentioned, this is by far the most rapid and massive deployment of American military power in our Nation’s history. That should be and I believe it is enough to suggest that the spirit of the War Powers Act, if not the letter, to those who disagree with the particulars, applies, and that therefore the President should, given the clear mandate of that act, submit to its requirements and ask us to do our duty under it.
I said that the third reason for the President to observe the letter and the spirit of the War Powers Act is to take advantage of what is at this moment - and pray they remain so - a relatively calm period where we can reflect and debate our goals, our objectives, our intentions, those of our adversaries, those of our allies, and their implications, short- and long-term, in the Persian Gulf, and for the world, at a time when there is time to think, to think clearly, to think things through and to avoid, as we did not avoid at the time of the Gulf of Tonkin resolution, the rush to get behind an alarm, an event, the loss of innocents, the attack on our warship, and that this is a moment where we have the luxury of not being influenced by the passions of the moment, whether they are pro or con.
For those reasons, as I say, Mr. President, I wish to associate myself with the remarks of the Senator from Oregon and other Senators who are similarly minded and hope that as we pass this resolution supporting the President, which I do intend to support, the President will take note of the thoughts some of us express and will in no way take the enactment of this resolution supporting his actions to date as a substitute for compliance with the War Powers Act.
Mr. President, I ask unanimous consent that I might proceed as if in morning business for not to exceed 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. HEINZ pertaining to the introduction of S. 3131 are located in today’s RECORD under “Statements on Introduced Bills and Joint Resolutions.”)