The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“WAR POWERS RESOLUTION” mentioning the U.S. Dept of State was published in the Senate section on pages S1113-S1115 on Feb. 24, 2020.
The State Department is responsibly for international relations with a budget of more than $50 billion. Tenure at the State Dept. is increasingly tenuous and it's seen as an extension of the President's will, ambitions and flaws.
The publication is reproduced in full below:
WAR POWERS RESOLUTION
Mr. MENENDEZ. Mr. President, I rise to elaborate on my statement of February 13 in support of S. J. Res. 68. This resolution puts the Senate on record with regard to war powers and Iran in the wake of the U.S. strike against Islamic Revolutionary Guard Corps Commander Qasem Soleimani on January 2, 2020.
The resolution, which directs the President to terminate the use of U.S. Armed Forces for hostilities against Iran, passed the Senate with a strong bipartisan majority. This bipartisan consensus is a testament to Senator Kaine's leadership, and I commend him for that.
It is also a reflection of the Senate's deep concern about the risk of a broader military conflict between the United States and Iran.
There is no dispute that Soleimani was an enemy of the United States, but this extraordinary killing of a high-ranking foreign military official nearly brought us to the brink of war. The strike would be justified if it had been necessary to defend against an imminent attack against the United States, but the administration has failed to provide any persuasive evidence of such a threat.
Instead, the administration appears to be laying the foundation for further military action against Iran, without coming to Congress. Let's be clear: It is not just that there is no existing authorization. To the extent that the administration continues to confront Iran militarily, it is doing so in direct opposition to Congress--both the House and Senate have now passed bipartisan resolutions directing the President to terminate hostilities with Iran--and without the support of the American people.
With that in mind, I would like to address some of the features of S.J. Res. 68, as well as the administration's legal rationale for the Soleimani strike and why that rationale is so problematic.
Before doing so, I want to take a step back and make sure that everyone understands the real world impact. Today, over 100 service men and women are suffering from traumatic brain injuries incurred during an Iranian retaliatory attack over Soleimani. My heart goes out to them and their families.
Thankfully there were no American casualties, but we will not be so lucky if President Trump stumbles into a broader conflict with Iran.
So when I raise the alarm over this administration's actions, it is not academic. It is about our sons and daughters, husbands and wives, and brothers and sisters serving in harm's way. It is about honoring their service with more than just words. It is about ensuring that they are not needlessly put in danger by an arrogant and lawless administration that refuses to recognize any limitation on its ability to drag our country into war.
S.J. Res. 68 has a number of important features. I will highlight three of them briefly.
First, this resolution established a new precedent in the Senate.
The War Powers Resolution, as amended, provides for privileged consideration of joint resolutions that direct the President, in broad terms, to stop the use of U.S. forces in specified hostilities. The only such privileged resolutions in the Senate prior to S.J. Res. 68 mandated that the President ``remove'' U.S. forces from hostilities. The operative language of S.J. Res. 68 uses a variation of that language. Instead of ``remove,'' it directs the President to
``terminate'' the use of U.S. forces for hostilities.
In a failed bid to prevent privileged consideration of S.J. Res. 68, the Republican majority asserted, in effect, that ``remove from hostilities'' was a term of art and that privilege was available only for resolutions that used that specific phrase. That rigid approach is inconsistent with the overarching purpose of the War Powers Resolution--for Congress to reconfirm and reassert its constitutional powers over the use of force--and contrary to the statutory framework and legislative history of the War Powers Resolution. The statute does not prescribe specific language, and the legislative record is full of examples of the interchangeable use of ``remove,'' ``terminate,'' and multiple other synonymous terms.
Ultimately, the Senate moved forward with consideration of S.J. Res 68 on a privileged and expedited basis.
This precedent is noteworthy for two reasons: First, it clarifies that there are no magic words required for privilege. This means that a resolution that requires the President to stop the use of U.S. Armed Forces in hostilities will not be deprived of expedited consideration in the Senate over semantics. Second, it provides a degree of flexibility for Senators who seek to stop such hostilities. For example, ``terminate'' or other synonyms may be more appropriate than
``remove'' for certain situations, like cyber operations, where implying a need for or requiring the physical removal of forces may not be practicable or desirable.
Second, S. J. Res. 68 includes a rule of construction stating that it does not prevent the United States from defending itself against imminent attack. This is a critical feature. While we cannot abide by this President or any President usurping Congress' role and responsibility to authorize the use of force, the United States always has the right to defend itself against an ongoing or imminent attack.
In tandem with this rule of construction, the Senate adopted an amendment offered by Senator Risch that added the following finding:
``The President has a constitutional responsibility to take actions to defend the United States, its territories, possessions, citizens, service members, and diplomats from attack.''
The responsibility to ``take actions'' in defense of the United States and our people and interests is a core function of the Presidency. This responsibility includes the full range of resources available to the executive branch--diplomacy, law enforcement, intelligence, military force, and beyond. Each type of action is subject to different legal and constitutional considerations, and the President never has a blank check. He or she is obligated to act consistently with the law and the Constitution at all times, even when in defense of the country. When using military force in self-defense, this means his or her actions must be in response to an attack or imminent attack unless Congress has explicitly authorized some other action. Against this backdrop, the Risch amendment is consistent with both the rule of construction in S.J. Res. 68 and the constitutional balance between Congress and the executive branch over the use of force.
For these reasons, I voted in favor of the Risch amendment and am not surprised it passed overwhelmingly.
While Senate passage of S. J. Res. 68 is a major step against an unnecessary and unauthorized war with Iran, I am concerned that the administration may not heed the message. At minimum, its legal rationale for the Soleimani strike suggests that it is attempting to lay the foundation for further military action against Iran.
The administration has publicly asserted three legal bases for the Soleimani strike, but none of them add up.
First, let me address the 2002 Iraq authorization to use military force, AUMF, a law that this administration has distorted beyond recognition.
The administration has stated that the 2002 AUMF is a valid legal basis for the Soleimani strike because Soleimani was a threat
``emanating from Iraq.'' I am sorry to say that does not pass the laugh test.
Congress passed the 2002 AUMF for a single purpose--to address the threat posed by Saddam Hussein's alleged weapons of mass destruction. Nothing about the law, its text, or its legislative history suggests that it ever authorize or was intended to authorize the use of force against Iran.
I know because I was there. I debated the AUMF, and I voted against it. But even the most staunch supporters would never have claimed that the authorization to use force against Saddam Hussein in 2002 extended to the killing of a senior Iranian commander 18 years later.
The administration also cites article II of the Constitution as a legal basis for the Soleimani strike. Article II would be available to the extent the strike was necessary to defend against an imminent attack; however, as I noted earlier, nearly 2 months have passed, and Congress and the American people are still waiting for proof--proof that such an attack was, in fact, imminent and, if so, that killing Soleimani was required to prevent the attack.
Perhaps not surprisingly, given the lack of supporting evidence, the administration does not limit its article II claim to self-defense. Like other recent administrations, it asserts that the Constitution empowers the President to use military force ``to protect important national interests.''
But what kind of legal standard is this?
At best, ``protecting important national interests'' sets an incredibly low bar for the most consequential of actions. At worst, it is a self-serving power grab that the President can use to justify military action anywhere in the world without congressional authorization.
We should not be surprised--this ``standard'' was concocted by and for the executive branch to maximize the President's ability to use military force without congressional authorization. It does not reflect a neutral analysis of the separation of power, it has not been tested in the courts, and it has not been approved by Congress.
Just a few weeks ago, in this very Chamber, we listened as the President's defense lawyers argued during the impeachment trial that steps taken in support of the President's reelection are inherently in the national interest. That was a shocking and frightening claim in the impeachment context. But now consider it in the context of sending the men and women of our Armed Forces into harm's way.
Surely the Constitution does not authorize the President to use force in support of his or her reelection. Surely, it does not. Then again, this administration has been unable or unwilling to identify any limits on its purported article II authority, any instance in which it would concede that it needs Congress to authorize the use of force.
Finally, I refer you to Secretary Pompeo's January 17, 2020, appearance on the Hugh Hewitt radio show. While on air, Secretary Pompeo insinuated that the designation of the IRGC as a foreign terrorist organization, FTO, served as a legal basis to target IRGC members, presumably including Soleimani.
FTO designations are administrative actions taken pursuant to the Immigration and Nationality Act; they are clearly not congressional authorizations for the use of military force.
Now, I was hoping that Secretary Pompeo himself or a State Department official on his behalf would issue a simple clarification and acknowledge what we all know: An FTO designation has no bearing on whether this or any administration can use military force, period.
I have written the Secretary on this question, and I have posed the same question to the State Department's Acting Legal Adviser. We continue to await a response, and I must say that the delay does not leave me with much confidence that we will receive the right answer.
As so clearly demonstrated by the flimsy legal rationale advanced in relation to the Soleimani strike, we cannot rely on this administration or any administration to guard Congress' prerogatives over war powers.
I am hopeful that the Soleimani strike and the Senate debate over S.J. Res. 68 will serve as a wake-up call. I am hopeful that all of our colleagues in this Chamber and in the House will work to reassert Congress' role over the use of force.
We owe it to the Constitution, we owe it to the American people, and we owe it to the men and women who fight and die on our behalf.
____________________
