The Honorable J. Dennis Hastert
Speaker of the House of Representatives
United States Capitol, Room 232
Washington, DC 20515
The Honorable Tom Daschle
Senate Majority Leader
United States Capitol, Room 221
Washington, DC 20510
Re: Authorization of Use of Military Force, S.J. Res. 23.
Dear Mr. Speaker and Mr. Majority Leader:
On behalf of the American Civil Liberties Union, we are writing to Congress regarding the passage of S.J. Res. 23 adopted on September 14, 2001. This measure approves the use of military force in response to terrorist attacks against the World Trade Center and the Pentagon.
Specifically, we think it is important for Congress to be clear about what the Resolution does and does not do. By its express terms, the Resolution authorizes the President to use force ""against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?"" This language, while broad, cannot and should not be construed by either the President or Congress as a carte blanche. Rather, Congress must continue to play an important role in the national debate as the size and scope of any possible military engagement evolves over time.
The ACLU is a nationwide, nonprofit, nonpartisan organization with approximately 300,000 members dedicated to preserving our constitutional liberties and upholding the freedoms that are fundamental to the American system of government. As a matter of longstanding policy, the ACLU neither endorses nor opposes the use of military force. But the ACLU has been steadfast in its insistence that any decision to commit American men and women to battle requires meaningful consultation with Congress. Under the Constitution, moreover, only Congress can declare war.
In this instance, Congress has chosen not to declare war but has acted instead under the War Powers Act. The War Powers Act was adopted in 1973, only nine years after the 1964 Gulf of Tonkin resolution had authorized the President to ""take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression"" in Southeast Asia. Pub.L.No. 88-408. Having seen Presidents Johnson and Nixon rely on this vague language as a basis for escalating the Vietnam conflict without any further legislative action, Congress passed the War Powers Act as one means of reasserting its vital constitutional role in the decision to commit American forces to battle.
As you know, the War Powers Act contains three basic requirements. First, it requires regular consultation with Congress whenever military action is contemplated. 50 U.S.C. §1542.
Second, the Act requires the President to file a report within 48 hours of when armed forces are introduced ""into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstance."" 50 U.S.C. § 1543(1). The report must outline, among other things, ""the estimated scope and duration of the hostilities or involvement,"" 50 U.S.C. § 1544(a).
Third, the Act requires Congress to give its consent, either through a declaration of war or ""specific statutory authorization,"" such as a joint resolution that references the Act. If Congress does not consent within 60 days of the time the report is, or should have been filed, the President must withdraw American forces within 30 days. 50 U.S.C § 1544(b).
The joint resolution adopted by Congress expressly states that it is intended to constitute the ""specific statutory authorization"" required by the War Powers Act. Significantly, however, the resolution also states that it is not intended to supercede ay requirement of the War Powers Act.
The War Powers Act gives Congress the means to assert its proper constitutional role with respect to any use of American military force abroad to combat terrorism in the weeks, months, perhaps years ahead. Such use of military force will require difficult and profound moral and foreign policy choices on which the public may well disagree. On September 14th, Congress authorized an initial military response. It did not, and under the Constitution it could not, entirely cede its war powers to the President.
Consistent with the constitutional design of the framers and the language of the War Powers Act, we therefore urge Congress to insist that any presidential decision to expand the scope or duration of military involvement into a ""wider war"" comply with the strictures of the War Powers Act, including the requirements of consultation, reporting and consent within 60 days of the initiation of hostilities or the deployment of troops where hostilities are likely.
In this time of grave crisis, the country may well be faced with a series of critical decisions regarding the scope and duration of our military commitment. Under both the Constitution and the War Powers Act, those decisions must be made with the concurrence of the people's representatives and not by the President acting alone.
Sincerely,
Nadine Strossen
President
Anthony D. Romero
Executive Director
Laura Murphy
Director, Washington National Office
Timothy H. Edgar
Legislative Counsel