War Powers Cases, Part 3: Made Mistake? Consult Louis Fisher or Tulsi Gabbard

by Mary W Maxwell, LLB

This series aims to report on war-powers cases, in which American citizens have asked the court to stop a war. However, we can pause to think about the prospect of Congress stopping a war on its own initiative.

This article reprints testimony given to Congress by an expert witness, Louis Fisher.  He is the keeper of the keys to the balance-of-powers on Capitol Hill. He tells Congresspersons how to stop a wrong-headed war, once it has begun.

I will also reprint information about Rep Tulsi Gabbard’s bill called “The Stop Arming the Terrorist Act.” She and others believe that the US has been supporting many of the people whom we are fighting against — which is pretty daft when you think about it.

Both of the following item are abridged, and bolding was added by moi.

Statement by Professor Louis Fisher on January 30, 2007, at a US Senate Hearing by the Committee on the Judiciary, on the subject of  “EXERCISING CONGRESS’S CONSTITUTIONAL POWER TO END A WAR”.

Mr. Fisher, it is an honor to have you before the Committee again, and the floor is yours.

STATEMENT OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW, LAW LIBRARY, LIBRARY OF CONGRESS, WASHINGTON, D.C.

Mr Fisher. Thank you very much, Mr. Chairman. …The Constitution not only gives Congress the authority but the duty and the responsibility to decide national policy, domestic policy, foreign policy, national security policy. …That is why you are elected.

The system of Government we have … is that we believe in the Constitution where the sovereign power is placed with the people, and they give you their power temporarily to discharge. …The power is with the people, and you can revisit legislation any time you like.

… You are a temporary custodian of the Constitution which, very importantly, includes the checks and balance system and the separation of powers system. We have that because the Framers did not trust in human nature. They were afraid of any concentration of power being abused.

Now, when you passed the Iraq resolution in October 2002, you did not sign off and say the rest is for the President. Any statute that you pass, you have a duty to revisit, and recalibrate in light of new information…. You have few restrictions on what you can do…. I do not have any grounds for believing that the President has any special expertise or better judgment on whether to continue a war than the elected Members of Congress. The Framers put their trust in the deliberative process.

You can look at Article I and Article II, and Article I obviously gives the lion’s share of the war power to Congress…. None of those war prerogatives are given solely to the President of the United States. They are either given expressly to Congress, or they are shared between the President and the Senate.

When you look at the Framers, their view of history was that executives over time, in their search for fame and glory, got nations into wars that were ruinous to the people and ruinous to the Treasury. So that is why the power of initiating war was placed in Congress, and the President has certain powers of a defensive nature to repel sudden attacks.

Now, about the Commander-in-Chief Clause. It is an important clause but not the way it is read today: one, it affirms unity of command. The unity of command means that the President is in charge of troops, but those troops can be controlled by Congress. The second very important part of the Commander-in-Chief Clause is civilian supremacy. The same duty that commanders have to the President, the President has to the elected representatives. …

Now, when the elected Members of Congress decide that a war has declined in use or value and you want to revisit it, you can place various conditions on appropriations, change legislative language. That is up to you. You may decide in doing that that you want to move U.S. troops to a more secure location. So there is no issue here about not protecting our troops.

The key question … is for Congress to determine that the continued use of military force and a military commitment is in the Nation’s interest.  I don’t think when you are trying to decide that question that there is any help by saying that if you express an independent view, you are somehow emboldening the enemy.

A lot of people talk about the Steel Seizure case …. They miss [Justice] Robert Jackson’s view at the end of his decision … where he says ‘‘With all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law and that the law be made by parliamentary deliberation.’’

Thank you.

Maxwell: That was ten years ago, when the war Lou Fisher had in mind may have been the one in Afghanistan (though he thinks in abstract terms about the Constitution). Now we look at a Congresswoman, first elected in 2012. She was a Hawaiian National Guardsman deployed to Iraq in 2006, and in 2009 she volunteered for a tour in Kuwait. (Recall that Part 1 of this series of war-powers cases, involved Captain Nathan Smith, stationed in Kuwait.)

Having been on the ground in the Middle East, Rep Tulsi Gabbard should be listened to on that subject. I think there is much evidence to support her belief that the US provides help to ISIS.

Gumshoe published an article about Tulsi, in July 2017 entitled “Servant Leadership,” which quoted her as saying:

“If you or I gave money, weapons or support to al-Qaeda or ISIS, we would be thrown in jail.  Yet the U.S. government has been violating this law for years…”

The rest of this article is her Press Release of March 10, 2017:

Washington, DC—Rep. Tulsi Gabbard’s Stop Arming Terrorists Act has been introduced in the U.S. Senate by Senator Rand Paul. The bipartisan legislation (H.R.608 and S.532) would prohibit any Federal agency from using taxpayer dollars to provide weapons, cash, intelligence, or any support to al-Qaeda, ISIS and other terrorist groups, and it will prohibit the government from funneling money and weapons through other countries who are directly or indirectly supporting terrorists.

The legislation is currently cosponsored by Reps. John Conyers (D-MI), Scott Perry (R-PA), Peter Welch (D-VT), Tom Garrett (R-VA), Thomas Massie (R-KY), Barbara Lee (D-CA), Walter Jones (R-NC), Ted Yoho (R-FL), and Paul Gosar (R-AZ), and endorsed by Progressive Democrats of America (PDA), Veterans for Peace, and the U.S. Peace Council.

“For years, the U.S. government has been supporting armed militant groups working directly with and often under the command of terrorist groups like ISIS and al-Qaeda in their fight to overthrow the Syrian government. Rather than spending trillions of dollars on regime change wars in the Middle East, we should be focused on defeating terrorist groups like ISIS and al-Qaeda, and using our resources to invest in rebuilding our communities here at home,” said Rep. Tulsi Gabbard. “The fact that American taxpayer dollars are being used to strengthen the very terrorist groups we should be focused on defeating should alarm every Member of Congress and every American.  We call on our colleagues and the Administration to join us in passing this legislation.”

“One of the unintended consequences of nation-building and open-ended intervention is American funds and weapons benefiting those who hate us,” said Dr. Rand Paul. “This legislation will strengthen our foreign policy, enhance our national security, and safeguard our resources.”

Background: [This Act is like] the way that Congress passed the Boland Amendment to prohibit the funding and support to CIA backed-Nicaraguan Contras during the 1980’s, this bill would stop CIA or other Federal government activities in places like Syria…

The bill achieves this by:

• Making it illegal for any U.S. Federal government funds to be used to provide assistance covered in this bill to terrorists [re] weapons platforms, intelligence, logistics, training, and cash.
• Making it illegal for the U.S. government to provide assistance covered in the bill to any nation that has given or continues to give such assistance to terrorists.
• Requiring the Director of National Intelligence (DNI) to determine the individual and groups that should be considered terrorists, for the purposes of this bill, by determining: (a) the individuals and groups that are associated with, affiliated with, adherents to or cooperating with al-Qaeda, Jabhat Fateh al-Sham, or ISIS; (b) the countries that are providing assistance covered in this bill to those individuals or groups.
• Requiring the DNI to review and update the list of countries and groups to which assistance is prohibited every six months, in consultation with the House Foreign Affairs and Armed Services Committees, as well as the House Permanent Select Committee on Intelligence.
• Requiring the DNI to brief Congress on the determinations.

Isn’t it wonderful to have a few persons in Congress who can talk sense?