Congress seeks to define president's role in using military force

Photo: Senate Foreign Relations Committee

WASHINGTON (Sinclair Broadcast Group) – Members of the Senate Foreign Relations Committee met Wednesday to discuss the role of the president and Congress when using military force.

On Nov. 14, the committee evaluated a related topic -- the president’s power to fire a nuclear weapon -- and evaluated the administrative procedures for firing that weapon. That hearing looked at the powers enacted by The Atomic Energy Act of 1946, which places the power of firing a nuclear weapon under political control and not the military.

Wednesday’s hearing focused primarily on Article I and Article II of the U.S. Constitution and the president’s powers to act independently or with the consent of Congress when considering the use of force against an enemy.

Article I of the constitution does grant the Congress the power to “declare war.” Article II gives the president authority as the Commander in Chief:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States,” according to Article II.

Committee Chairman Bob Corker, R- Tenn., said it is in the nation’s interest to have a strong commander in chief to take quick and decisive military actions in times national security calls for it.

“That authority must be legally sound and be checked by vigorous oversight and engagement from Congress on behalf of the American people. The decision to use military force is one of the most consequential any president can make,” Corker said.

The senator said he was interested in learning more about the tests the president should use to determine if force should be used, how the president should weigh the use of force against other options, and the consideration of public opinion in these situations.

“We should look at the legal side of this issue. The reality is that unless Congress takes the rare step of withholding funding, history shows that the president’s ability to initiate military action without a congress has been extremely broad,” Corker stated. “That said, discussing the legal doctrine regarding these questions is a conversation worth having.”

Ranking Member Ben Cardin, D-M.d., expressed his concern about the president taking military action without the Congress’ consent.

“President Trump's entire inclination to use military force and to risk war rather than to find diplomatic solutions to these crises is troubling,” Cardin said. “His attitude toward diplomacy ranges from disinterest to naivety to actively sabotaging his own Secretary of State.”

The senator remarked that the increasing tension between the president and North Korea could lead to a nuclear first strike situation.

“He might even potentially seek to initiate a nuclear first strike, and as borne out by our recent hearing on this issue, we would have to rely on the strength of character and bravery of those in military responsibility for carrying out that attack to question its legality, Cardin said.

Hearing witness and Former Assistant to the President for National Security Affairs under President George W. Bush’s administration Stephen Hadley said the decision to use military action must be made with the "greatest seriousness, consideration, and care” because it puts those Americans serving in our nations armed forces in harm’s way.

He called upon his experience working with President Bush to explain to the committee how a president might evaluate the use of force.

“After being assured once again that his national security team believed that the new strategy would achieve its objective, he [President Bush] had a simple request: “if you ever change your mind [on this point], you must let me know – for I cannot send men and women in uniform into war if we don’t have a strategy that will win.”

“This is the mindset that the nation must have when it decides to use military force. It must have a strategy to succeed,” Hadley said. “If it doesn’t, then our military should not be sent to war. And if our military is sent into combat, then it should have the resources, rules of engagement, and support that will allow it to succeed.”

He also told the Foreign Relations committee that achieving peace after the use of military force is an important part of that plan.

“A stable and sustainable peace that will not give rise to threats to American lives and interests often will require helping local actors develop institutions of good governance, economic development, and security. This is the work of civilian actors every bit as important as our military,” Hadley said.

He said that Congress should be consulted when the military action might cause a high risk of civilian and military casualties.

“My own view is that for a major military operation that carries a high risk of American military casualties, a high risk of civilian casualties especially among U.S. allies and friends, that has major geopolitical implications for American interests and position in the world, and in which American friends and allies have a major stake, prior Congressional approval would be the wiser course.”

Witness and Former Under Secretary of Defense for Policy Christine E. Wormuth said that while the president may have the power to indicate the use of force without Congress, Congress has power over funding when it comes to prolonged military action.

“There is no established rule or set of criteria that outline when a potential use of force crosses the threshold requiring the President to seek prior approval from Congress,” Wormuth said. “The Constitution gives both branches of government important roles in decisions about use of force, to include giving Congress the power of the purse, but many different factors influence exactly how each branch carries out those roles at any given moment in time.”

Wormuth also advised the committee to talk to the American people more about what the United States is doing overseas.

“I think most Americans want our country to continue being a leader in the world, but in ways that are fair, make sense and don’t get in the way of us being able to take care of important matters here at home,” Wormuth stated.

John B. Bellinger, witness and former National Security Council and legal advisor, said it is important for the president and Congress to both explain why they are exercising the use of force.

“It is also important that the President and Executive branch officials explain the legal and policy basis for any use of force by the United States,” Bellinger said. “When the United States does not do so, it appears to act lawlessly and invites other countries to act without a legal basis or justification.”

He also advised the members of the committee to “revise and update the War Powers Resolution.”

“Congress passed the War Powers Resolution in the aftermath of the Vietnam War to address these concerns and provide a set of procedures for both the President and Congress to follow in situations where the introduction of U.S. forces abroad could lead to their involvement in armed conflict,” according to the Library of Congress.

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