House Members Grill Panetta on Syria and The Constitution

 

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House Members Grill Panetta on Syria and The Constitution

April 20, 2012 • 6:59AM

During a lengthy hearing of the House Armed Services Committee on Syria Thursday, Defense Secretary Leon Panetta was intensively questioned by Reps. Walter Jones (R-NC) and Randy Forbes (R-Va.) on whether the President intends once again to go to war without first getting Congressional authorization under the Constitution and the War Powers Act. Panetta ultimately was evasive, and essentially repeated his earlier, more blunt answers to Sen. Jeff Sessions (R-Ala.) in a more roundabout way.

Following, we provide a transcript of those key exchanges, to get a precise picture of where the Nerobama unitary executive really stands on the issue of Congress and the authority to declare war or take military action. The formulations used by Reps. Jones and Forbes are precisely those incorporated in House Concurrent Resolution 107. As in the earlier exchange with Sen. Sessions, Secretary Panetta, on behalf of Obama, has made it clear that the Administration does not have any intention to adhere to the Constitution. While paying lip service to the Constitution and the War Powers Act, Panetta ultimately cited Congress' "power of the purse" and claimed that approval by the UN Security Council or obligations to NATO allies was mandatory, but the President would not come to Congress before initiating military action.

The official transcript of the exchange among congressmen Walter Jones (R-N.C.) and Randy Forbes (R-Va.) with Defense Secretary Leon Panetta, shows that Rep. Jones pursued, doggedly, whether the Administration will seek authorization from Congress before taking any military action. As transcribed by Congressional Quarterly, Panetta said, in response to Rep. Jones' first question:

"We will — we will clearly work with Congress if it — if it comes to the issue of the use of force. I think this administration wants to work within the War Powers provision to ensure that we work together, not — not separately."

Jones continued questioning: "And I hope that if there is a decision, including Iran as well as Syria, if a decision is made to commit American forces, that the president would feel an obligation to the American people, not to Congress necessarily, but the American people, to explain and justify why we would take that kind of action. And again, I'm talking about a situation where we're not being attacked. We just see things happening in other countries that we don't approve of. And I would hope, and I think you did give me this answer, but if you would reaffirm that if we have to use military force, and as we're going to initiate that force, if it's going to be our initiation that causes that force, that the president — any president — would come to Congress and the American people and justify the need to attack."

Panetta responded: "Congressman, as — as you understand, this president, as other presidents, will operate pursuant to the Constitution. The Constitution makes clear that the commander-in-chief should act when the vital interests of this country are in jeopardy. And I believe this president believes that if that in fact is the case, he would do that in partnership with the Congress in terms of taking any action."

Jones noted the efforts of colleague Randy Forbes (R-Va.) to nail down Secretary of Defense Robert Gates on the same issue in the early moments of the Libya war, and complained that Forbes had never gotten a straight answer, and implored Panetta not to follow the Libyan precedent.

Panetta replied — still evasively, "Congressman, what I can assure you of, is that as long as I am secretary we won't take any action without proper legal authority."

A little later, Rep. Forbes himself continued the questioning on this issue, relentlessly. After introductory remarks by Forbes, the following ensued:

Tr.: "And when we talk about vital national interest, probably there's no greater vital national interest that we have than the rule of law. And so sometimes we have to just ferret that out and see what that is. And as I understand what you have indicated to this committee, Mr. Secretary, and correct me if I'm wrong, you believe that before we would take military action against Syria, that it would be a requirement to have a consensus of permission with the international community before that would happen. Is that a fair statement? And if not, would you tell me what the proper...

PANETTA: I think that's — I think that's a fair statement.

FORBES: If that's fair, then I'd like to come back to the question Mr. Jones asked, just so we know. I know you would never do anything that you didn't think was legally proper, and you said that the administration would have proper legal authority before they would take any military action. So my question is, what is proper legal authority? And I come back to, as Mr. Jones pointed out, in the War Powers Act, it's unlikely we'd have a declaration of war, but that would be one of the things. Certainly, we know if there's a national attack that would be one of them. And then the second thing, of course, in the joint — I mean the War Powers Act — would be specific statutory authorization. Do you feel that it would be a requirement to have proper legal authority, that if you did not have a declaration of war or an attack on the United States that you would have to have specific statutory authority — in other words, the permission of Congress — before you'd take military action against Syria?

PANETTA: We — we would — we would not take action without proper legal authority. That's...

FORBES: And I understand. And in all due respect, I don't want to put you in interrogation, but we're trying to find out what exactly proper legal authority is, because that's what we have to act under. And we don't have the president here to chat with him or have a cup of coffee with him and ask him. You're the closest we get. And so we're asking, from your understanding and as Secretary of Defense, what is proper legal authority? Would that require specific statutory authorization from the United States Congress if we had not had a declaration of war or an attack upon the United States?

PANETTA: Well, again, let me put it on this basis. This administration intends to operate pursuant to the War Powers Act. And whatever the War Powers Act would require in order for us to engage, we would abide by.

FORBES: ...I just come back to if there's no declaration of war, no attack upon the United States, and if we're going to comply with the War Powers Act, would that require specific statutory authority by Congress before we took military action on Syria?

PANETTA: Again — again, under the Constitution, as I indicated, the commander-in-chief has the authority to take action that involves the vital interests of this country, but then, pursuant to the War Powers Act, we would have to take steps to get congressional approval. And that's — that's the process that we would follow.

FORBES: You'd have to take steps to get that approval, but would the approval be required before you would take military action against Syria?

PANETTA: As I understand the Constitution and the power of the president, the president could in fact deploy forces if he had to under — if our vital interests were at stake, but that ultimately, then, under the War Powers Act, we would have to come here for your support.

FORBES: So you'd get the support of Congress after you began military operations.

PANETTA: In that — in that particular situation, yes.

FORBES: And then just one last thing, and make sure I'm stating this correctly, it's your position that the administration's position would be that we'd have to get a consensus of permission from the international community before we'd act, but that we wouldn't have to get specific statutory authority from Congress before we would act?

PANETTA: Well, I think in that situation, if the international action is taken pursuant to a Security Council resolution or under our treaty obligations with regards to NATO, that obviously we would participate with the international community. But then ultimately, the Congress of the United States, pursuant to its powers of the purse, would be able to determine whether or not that action is appropriate or not."

Nowhere in the Constitution is there any provision, giving the President the authority to override Congress' exclusive power to declare war, if some "vital interest" is at stake. Furthermore, the so-called "power of the purse" is completely separate from the issue of Congress having the sole authority to declare war.