September 23, 2014

Kaine Addresses Center For American Progress On The Role Of Congress In The Fight Against ISIS

FULL TRANSCRIPT: Well thank you so much. And I want to begin by thanking my good friend Governor Strickland for his kind words and for the invitation of CAP to be here today. There are few people in public life whom I’ve come to know in 20 years of elected office that I feel as warmly toward both as a public servant and as a person than Ted Strickland. He really sets a great example of public service, but it stems from a moral compass that is undeniable. If you know Ted for five minutes, you detect that very strongly. That’s one of the reasons I’m so happy to be here with you to talk about an issue that is sadly topical.

The war on ISIL—and that phrase was used by Secretary Hagel at the Armed Services hearing last week, “we are engaged in a war on ISIL”—has been going since the middle part of August when it moved from a defensive mission to protect American personnel at the embassy and consulate in Erbil to an offensive mission against ISIL. By my quick calculations, including the events announced this morning by the President, there have now been thousands of Virginians who have been directly involved in the airstrikes and other activities since that time. And I know we have people here from all over the country, and there are hundreds or thousands of folks from your states involved, as well. What I want to do is talk, as Governor Strickland mentioned, briefly about the threat, which is a very real threat; I take it seriously and I know all that are here would take it seriously as well. And that threat is why I support the basic pillars of the President’s four-point initiative announced two Wednesdays ago. And I’m going to talk about the Presidents four points briefly. But what I really want to dig into—I hope you will see my passion coming through me because I’m going to dig into this in a significant way—is a series of six reasons why I think it is absolutely critical—legally, for precedent reasons , for the reputation of our institution, and especially for the service men and women who risk their lives—I think it is absolutely critical Congress complete the authorization that it began last week when it voted on the arming of moderate elements in Syria. It is critical that Congress do this. If we’re going to engage this mission, we got to do it right or not do it. And if we can’t get congress on board with it, then we’re not doing it right. And, if Congress won’t get on board, then, much as I might regret it, we should stop doing what we’re doing. And finally I want to talk about not just what Congress should do generally and how Congress should be involved,  but I want to talk about what specifically I’m doing to fix this with my colleagues as we tackle this issue legislatively.

First, in terms of the threat. The ISIL threat—and I use the term ISIL because their geographic ambitions extend beyond Iraq and Syria to encompass a broader area of the Levant, so I tend to like the ISIL phrase better—the campaign that they are engaged in and violates basic international norms of human rights the subjugation of women, persecution of religious minorities, crimes that could be considered genocide, violations of national sovereignty—a whole series of significant violations of the most basic norms of human rights that they posed and have carried out  the violate these basic rights. They’re profanation of a great world religion; for them to claim to be the Islamic State of anything is a profanation of an important religion, and that is a significant matter. They pose significant threats not only to Iraq but to Syria and other nations in the region that we work closely with as allies. They pose significant threats to allies in Europe and Africa. I travelled recently with members of House and Senate Armed Services Committees and Intel and Foreign Relations Committees to Tunisia and Morocco, two nations that were working very closely in very different ways. They express huge concern about the foreign fighter issue. Tunisian and Moroccan foreign fighters have joined the battle with ISIL often coming from Europe, not even coming from Tunisia and Morocco. But the destabilizing possibility of those foreign fighters to European and African allies are significant, and I am convinced that they pose a significant threat to the United States. It’s a significant threat. It’s a growing threat. Recently, testimony by counter-terrorism officials of the United States have not said that there is any creditable evidence of an imminent attack on the United States by ISIL, but that does not mean they are not a significant and growing threat. Clearly they have been stating in words and indicating in action--the beheading of an American journalist in such a grizzly way, the recruiting of American foreign fighters or pledges to take action against the US--that this threat is one we have to take very seriously.

In addition to having a desire to do harm and to doing current harm in the region, they have significant sources of funding. And so they have what military guys would say equal a desire plus a capacity--the power they have been able to amass plus the weapons they have been able to amass. So that’s the reason--that threat that ISIL poses—that’s the reason I believe the United States needs to take action as part of a multinational coalition to take military against ISIL.

I believe that strongly, and I frankly think that the steps the President has taken, as he outlined, are steps that can be reasonably justified. We need to get to a debate in Congress, and I’m sure that some sand paper will be taken to the mission, and it’ll be changed as we do. But the four basic pillars of the President’s proposal I don’t not find controversial.

The first one is definitely not controversial: humanitarian assistance. The President talked about that. The US is the largest provider of humanitarian aid to Syrian refuges in the world. I hear some of my colleagues on Foreign Relations gripe sometimes that US doesn’t have a strategy with respect to Syria and this region. Being the largest provider of humanitarian aid in the world is not by accident. It doesn’t just happen out of the ether. It’s an intentional strategy that the U.S. has chosen and we’ve often chosen. The destruction, the complete destruction of the Syrian chemical weapon stockpile did not happen by accident. It was a huge victory in the ship involved in the destruction of the chemical weapons. (The MV Cape Ray returned to Virginia last Wednesday.) That’s a strategy. So, in the humanitarian area, that is a pillar that we can all support, but we shouldn’t be bashful about talking about what is being done in that area.

But the three military points of the President’s presentation a few days ago were counter-terrorism operations against ISIL leadership (I detect broad support for that among members of Congress); a targeted air strike campaign in Iraq and Syria to blunt the momentum of ISIL and move them back and to support ground forces battling ISIL on the ground; and then finally that pillar, the training and equipping of ground forces that will carry that battle to ISIL on the ground.

Now the piece of it that has gotten tension is the training and equipping of Syrian moderates. But that’s not the entire pillar. This is about the training and equipping of the Iraqi security forces, the training and equipping the Peshmerga allies in the Kurdish region, and also the frankly more difficult task, admittedly more difficult task, of the training and equipping of opposition forces that will battle ISIL in Syria. I think those four points—humanitarian, airstrikes, the training and equipment mission, and counter-terrorism operations against ISIL leadership--are all very reasonable and worthy of support with some emendations that I will get to in a bit. But the point that I think is so critical is that the President shouldn’t be doing this without Congress. And maybe more to the point, frankly, if we’re going to assess the culpability, Congress shouldn’t be allowing it to happen without Congress.

And so let me get into the reasons why I think this is important that this mission, as enunciated by the President, has to be done right and what that means as Congress has to be on board with all of it. And I want to talk about six things: the Constitution; the authorizations that Congress passed in the early 2000s that have been used by this administration as justification; the Presidents own words and actions as a candidate and President, the reputation of this current Congress; the precedent it sets for future Presidents and future Congress; and finally the most important thing, an underlying value that really is spread throughout all of these that I talk to you about, especially the Constitution, is allocation of power.

Governor Strickland stated it right with the Constitution. The Constitution I think is extremely clear. The Constitution is an interesting document that is composed of both complete precision--you can’t be President if you’re not 35 years-old--and very carefully worded ambiguity--you can’t take someone’s property without due process of law. What does that mean? Nobody can be subject to cruel and unusual punishment. What does that mean? The Framers chose often to be specific, and, then in other instances, they chose to be vague.

Along the spectrum from specific to vague, the war powers piece is among the most specific. And Ted you did a great job—It’s Congress to declare it’s President to carry out the mission. That’s how they decided to do it. The President has Article 2 powers as a commander in chief to execute a mission once initiated because the last thing you need is 535 commander in chiefs. But the initiation of military action is for Congress to do. Not only is the language of the constitutional provision clear; the purpose for it is also clear. The principal drafter of the Constitution, James Madison—you’re going to forgive me because I’m going to use a lot of Virginia references in this speech---but the principle drafter Madison made very plain why the provision was drafted to have Congress as the declarer of war. Madison wrote a letter to Thomas Jefferson a few years after the Constitution was finalized and basically said this: “Our Constitution supposes what the history of all governments demonstrates, that it is the executive that is the branch of power most interested in war and most prone to it. It is for this reason we have with studied care vested the question of war in the legislature.” Now Madison was familiar with executives, frankly monarchs, that had had the power of the declaration war. And so, in drafting the Constitution, Madison and the other drafters were very careful to pull that power away from where it had been traditional placed and to put it in the legislative branch. Now the Framers understood clearly that the President as Commander and Chief would have a solemn obligation to defend the nation immediately, especially when a Congress in recess member would have to ride back to Washington on horseback back from Montpellier, Vermont or something. There would be the need for immediate action to defend the nation, and Congress intended that the President should do it. But they had a very clear understanding of article 2, Commander and Chief power was to defend against imminent attack.

The first real test of this came when Thomas Jefferson was President and Jefferson was seeing American ships, both merchant and military, subject to repeated attack by the Barbary Coast pirates in the Mediterranean. And Jefferson knew, “I can order my commanders to repeal attacks all day long. I’m Commander In Chief. I have to defend our shipping interest.” But, at some point, he said, “What are we going to do, just keep repelling one attack after the next? We need to go.” And it was almost the exact phrase that President Obama used on Meet the Press two weeks ago. “We need to go on offense against the Barbary Pirates. Not just repel attacks, but go on offense against these attacks on shipping in the Mediterranean.” When Jefferson made that decision that it was now time for an offensive mission, he said, “Without sanction of Congress, I cannot go beyond the line of defense.” And he had to come to Congress to get authority for actions against the Barbary Pirates that were offensive in.

That was the understanding under when the Constitution was drafted, but to give everybody their appropriate credit, beginning with Whigs and Federalist then onto Democrats and Republicans, the initial understanding has often been violated. As the Governor said, the Executive overreach into powers has maybe been particularly acute over the past 100 years, but there’s never been a really long-standing period of American history where we did it exactly according to Hoyle. Executive overreach: that’s what Madison saw. But what Madison didn’t see, what he wasn’t quick enough to see is that legislators like to abdicate. And the symbiotic relation between legislative abdication and executive overreach has been the source of this problem up to today.

But constitutionally, the matter is clear. The President does not have Article 2 power to go on offense against ISIL unless they are involved in an actual ongoing or an imminent threat against the United States, and there is no evidence that they are as indicated by other administrative testimony. That’s the Constitution.

The President and his team indicate that this mission add the four pillars are justified by the 2001 and 2002 authorizations passed by Congress. Let me get into that for a minute. I think that argument is an extremely creative stretch by extremely creative lawyers--hey I’ve made some creative arguments when I was lawyer—that, even giving the ability of lawyers to make arguments, just doesn’t really stand up when you look at it.

First remember this: In the hours after the attack of 9/11, President Bush brought an authorization to Congress. Ted was in Congress at this time. And the authorization said give me the President the ability to go after groups in order to prevent terrorist attacks on the United States. That was what the original authorization said essentially.  Even in the aftermath of the attack on the Pentagon and the World Trade Center, when emotions were high, and we had a righteous desire to even the scales, Congress overwhelming rejected that authorization. That was the Cheney preemptive war doctrine. Give the President the unilateral power to wage preemptive war against terrorist organizations the he sees fit to wage war against. Congress wouldn’t give them that power. Instead, Congress insisted the 2001 authorization be narrowed and that it be narrowed to those who perpetrated the attacks on 9/11. ISIL did not perpetrate the attacks on 9/11. ISIL was not formed until a few years 9/11. So calling ISIL a perpetrator of a 9/11 attack is to basically torture the English language, and I would it’s view essentially falling back into the preemptive war doctrine that Congress rejected.

Now the ‘01 authorization doesn’t just go after the perpetrators of 9/11 because the Bush and Obama Administration, sadly with a tacit acquiescence of Congress, have said also, “You can go after the perpetrators Al Qaeda. But you can also go after groups that are associated with Al Qaeda, associated forces.” That definition by both the Bush and Obama Administrations has been made so vast as to sweep in virtually anybody.

So I asked Administration witnesses at a hearing before the Armed Services Committee in May of 2013, “Okay. ‘Associated with Al Qaeda.’ What if a youngster is born in 2010/2011, ten years after 9/11, and in 2025 joins some organization in Nigeria that claims to have some sort of relationship with Al Qaeda and that organization has just formed. If that organization has no intent to do any harm to the United States, does the ’01 authorization cover it?”

And the Administration official said, “Oh yeah, absolutely.” No sense of irony. Was very blithe. Well, even in that instance, to call ISIL an associated force with Al Qaeda, when they have separated from Al Qaeda, when, in parts of Syria, they are battling Al Qaeda, again is such a torturous read of the language that I don’t believe either a clear reading of the original language or even the broadening gloss put on it by the Administration would allow ISIL to be fairly incorporated into the 2001 AUMF.

Secondly, there’s a 2002 AUMF that the President has assigned to it. That was an AUMF that then Congressman Strickland voted against. That AUMF was to authorize the war in Iraq. It was to topple a regime, the regime of Saddam Hussein. That regime is long-gone. There have been a number of governments since. The Administration has claimed that this ’02 authorization somehow justifies this action against ISIL, at least in Iraq; again, I think that argument is specious. The purpose of that ’02 authorization was not to engage in open-ended war in the ZIP codes that happen to be Iraq without limitation in terms of time. It was directed at the toppling of a particular regime.

And so, for both of the authorizations cited by the White House for statutory support for this operation, my view is that they don’t provide support at all.

Let me now go to me third argument, the President’s own words and actions. The President understands the Constitutional argument I made. When he was running for the President in 2007, he said, “The President doesn’t have unilateral power to wage war without Congress, absent an actual or imminent attack on the United States.” Those are his exact words. He knows the limits of Article 2 power.

Second, the President understands the limitations of the 2001 AUMF. He gave a speech in May of 2013 at the National Defense University where he said, “We shouldn’t be broadening that AUMF that was put together with no geographic limitation and no temporal limitation. We shouldn’t be broadening it. We should be narrowing it. We should be refining it. We should be ultimately on the path of repealing.

And with respect to the ’02 Iraq authorization that the Administration now claims gives support for the mission, just a few months ago we had a hearing about it before the Foreign Relations Committee. Administration officials came prepared to be asked about it, and, when they were asked, they said, “It is the position of this Administration that the 2002 AUMF is now obsolete and it should be repealed.”

So I would argue that the President’s own words as a candidate and as a President, demonstrate that he understands the narrow scope of Article 2 powers and he understands that the ’01 and ’02 authorizations are not to be stretched further but are to be narrowed in one instance and repealed in the next. And I would just say parenthetically I know lawyers make broad arguments. That’s what lawyers do. But I don’t think you serve this particular President well by advancing an open-ended and broadened interpretation of these authorizations when the President’s own words and actions suggest that what he wants to do id narrow them and repeal them.

Let me go to my fourth argument about why it’s important for Congress to weigh in: this Congress’s reputation. Now there are a million reasons why our approval rating is so low. There are a million of them. But I would argue that, in big picture, the major reason that the approval rating of Congress is low is a belief that we too easily abdicate responsibility. We too quickly decide, “Oh gosh, it’s too complicated to come up with a funding model for infrastructures. Let’s just do one patch job for the Highway Trust Fund for a few months. It’s hard to grapple with fixes to this or that program. Let’s just do a patch job. And it’s so hard to do a budget or appropriations. Let’s just do a CR for a few months.

I think the overall view that people have about Congress is—I don’t often agree with Vice President Dick Cheney, but I’ve got to admit he had one really good line—he said, “Congress likes to kick the can down the road. The problem is they don’t kick very well, and they don’t kick very far.” And I like that line. We have to acknowledge, when looking in the mirror, that that is a challenge we have. And Congress’s inability to embrace the responsibilities that we have, constitutionally, in the most somber thing that we do is part of the reason that we’re in the fix that we’re in with the American public.

So I think this particular Congress has a real opportunity, as well as an obligation, to start fixing some of what ails us and fixing some of what’s appropriately criticized about our behavior by taking seriously this most somber responsibility.

Beyond this President and this Congress, this is ultimately about a precedent for the future. If Congress allows the President to begin this campaign against ISIL and, as I said, go on offense against ISIL without Congress authorizing it, we will create a horrible precedent or maybe further a horrible precedent. A precedent that I have no doubt that Presidents will use to suggest, “I can take unilateral action against groups that may pose some terrorist threat to the United States.”

In fact, we will create, by precedent, exactly what Congress refused to do when they voted the Bush Administration down on their initial draft of the 2001 AUMF. And I would wonder why would we do that. After thirteen years of war, after learning the lessons that we should have learned, after living under an authorization that was drafted 60-words long without a geographic limitation without a temporal limitation that the Administration says may justify war for another 25 or 30 years, why possibly would we even want to further the precedent that would suggest, “You know what? Congress should have voted for the Cheney preemptive war doctrine in 2001 and should have just handed it all over to the executive to make these decisions.” Congress was right then, and they did it during a period of intense emotions after we were attacked, and they could have easily gone along with the broader version of the AUMF in that emotional, difficult, and tragic time when we were mourning as a nation. But Congress was smart enough not to do it. But if we do not weigh on this mission and have an up-or-down vote on it, we will basically be handing back to the executive what the ’01 Congress refused to do, and that would be very unwise in the precedent that it would set.

The last reason we need to tackle this is the value reason. I did Constitutional and civil rights law in my law practice, but I’m not a Constitutional law scholar. It is enough to do this to vindicate the Constitution, but that’s not really why I’m doing it. I’ll tell you why I’m doing it. The Constitutional allocation of power that was put into the Constitution that has its expression in statute, as well, was put in, in my view, for a very important reason. And it was this: don’t ask servicemembers to risk their lives if there’s not a political consensus that the mission is worth it. It’s the most somber thing we do. When we initiate military action, we are asking young men and women and some not-so-young men and women to risk their lives. And some will be killed. And some will be injured. And some will be captured. And some will see those things happen to their comrades. And some whom none of those things happen to, because of what they do to others, will come back with challenges in mental health that may follow them for the rest of their lives. That’s what we are asking these thousands of Virginians who are already involved and thousands from your states to do. That’s what we not ask; that’s what we order them to do when we initiate military action.

What right do we have to ask that sacrifice of anyone if we are not willing to have that tough debate, contentious as though it may be, and stand before our public and vote yes or no. Is that sacrifice—being accountable and having to vote yes or no—one millionth of a sacrifice that we ask men and women in uniform to make? No, it isn’t. And we volunteered to do it. And it’s not a sacrifice.

And so this history of Congressional abdication, of saying, “You know, boy, Mr. President, you go ahead and do this. And if it works out well, we’re going to say we were all with you, and, if it doesn’t work out well, we’ll gripe and complain about it.” That’s what members of Congress like to do. It is the height of public immorality, in my view, to command people to risk their lives when we’re not willing to do the simple and straightforward and clear thing that is on our shoulders.

So that is what has driven me to this and what has made me interested in this issue in the aftermath of the 2002 vote. I thought putting up the Iraq mission for a vote in the weeks before the midterm. The timing was manufactured—we didn’t go until Iraq until March of 2003—but was the most profane politicization of what should be the most somber decision we ought to make in American government. And so I started to get into this challenge about the executive and Congressional allocation of responsibility and started reading about it. Maybe it’s because I’m in Virginia and we’re so connected to the military; I feel this issue of not asking people to sacrifice when we’re not willing to do our jobs.

When the President went into Libya in 2011, I thought the mission made sense, but I faulted him publicly as a candidate for Senate for not bringing it to Congress. Some remember it; some don’t. The President was censured by the House of Representatives in 2011 for doing what he did without Congress.

But it’s ultimately about this value. The Constitutional argument, the statutory argument, the precedential argument, this President’s legacy, Congress’s reputation: it all funnels down to this basic value of we can’t ask  people to sacrifice their lives if we won’t do the most basic job that is entrusted to us to make a decision.

And look, if we make a decision that the mission is worth it, that doesn’t mean that it’ll all go well. That doesn’t mean that we won’t make a mistake. Institutions make mistakes. But the chances that it will go well are better if we debated it up front rather than go into the middle of it and start sniping with each other. Imagine how it feels to be in service and be in harm’s way oversees, and then suddenly see the sniping break out between the legislative and executive branch that never reached a consensus at the front end. I’ve had people stopping me in the halls of the Capitol—this is one of only two things where people have been stopping me, and, by people, I mean the security guards, and the cafeteria workers, and the people who work on the grounds crew, and others—stopping me, and the reason they’re stopping me is that we have a huge percentage of ex-military working in the Capitol or people with military in the families. And they understand this point very, very well. Let’s do our job if we’re going to ask people to do their job.

So, what is the job? And I’ll say this and conclude. I think there are three things that we ought to do right now.

The first is that we ought to craft a narrow authorization with respect to this mission against ISIL, along the lines that the President has proposed. And I drafted one last week and introduced it. There are two others that have been introduced in the Senate: one by Senator Nelson, one by Senator Inhofe. And those three will go into the Foreign Relations Committee, and Chairman Menendez has said we are going to take this up and we are going to vote on an authorization.

My authorization basically supports the President’s pillars but with four caveats/limitations. First, a year’s sunset that would require review and reauthorization. Second, a limitation on ground troops, and, depending on the interest in the Q&A, I’ll get into why that is strategically militarily exactly what we should do. Third, a drastic limitation on who’s known as an associated force so that an authorization, once drafted, doesn’t suddenly just grow into everything. And fourth is a repeal of the 2002 Iraq AUMF so we don’t have dueling AUMFs out there in the Iraq space.

That’s the first thing we ought to do: take this up as soon as we get back. We got between November 12th and the 11th of December when the Syrian piece that was authorized last week expires. We got to take it up. We got to vote on it. And I’ll hope that we support the President in the mission he describes.

Second thing we need to do is we need to revise the 2001 AUMF. That is a more complicated thing because crafting a specific authorization against ISIL, a named group, is one thing but revising an authorization that has been a broad legal framework for dealing with the perpetrators of 9/11 and their associated groups—even as  was evidenced yesterday where some of the strikes were again an All Qaeda-affiliate in Syria. That is probably going to take a little more time to get that right. And, here’s something good, the White House is engaged in bipartisan discussion about the way to refine that ’01 AUMF. So that’s the second thing that we need to do, and the White House is deeply engaged in that discussion with bipartisan members.

And the third thing we need to do that I would suggest is, for the long term, we’ve got to have a better process for making the most important decision we make in Congress—whether or not to initiate war. Senator McCain and I have introduced a bill, The War Powers Consultation Act of 2014, that looks at the infirmities that have made that War Powers of Act of 1973 kind of a nullity since it was enacted. Remember it was enacted when Congress had approved tacitly via budget the Vietnam War, but they didn’t approve of Nixon going into Cambodia and Laos, which he did secretly. And when they found out about it, they were like “hold on a second.” So the War Powers Resolution was passed in the aftermath of that. It was vetoed my President Nixon. The veto was overridden, but no President since then has ceded the constitutionality of it for a series of reasons. And there actually are some problems with the bill; most scholars would say, “I’d probably make at least some pieces of it unconstitutional.” So Senator McCain and I have put forward a repeal and replace of that resolution that basically does three things.

It tries to define, and this is tough, what is war. It’s not state v. state anymore. And these days of non-state actors, cyber-attacks, drone attacks, what is war that would trigger the executive-legislative interaction.

Second it tries to define and systemize consultation. Neither President said, “Well I’ve consulted our Congress about this.” I’m on the Armed Services and Foreign Relations Committee. Earlier in the year, I read in the paper that the President is consulting with Congress about something.  And I said, “Well, I know I’m 95th in seniority, but I am on these two committees and I’m Chairman of the Subcommittee in this region, and nobody’s called me. So Consultation can be as much or as little. Does the President call on a few people? Call on a few people who he thinks will agree with him? Or talking with the leadership and talking with the meaningful committees. We ought to have a clear understanding of what consultation is and is not. That protects the White House as well as protects Congress.

And finally, the 3rd piece of the proposal that Senator McCain and I have would be to systematize and require up or down votes by members of Congress and not allow the abdication of responsibility that has been too common a theme in the history of how Congress has addressed these questions. Thanks for being here. I wish it wasn’t so topical. 

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