Tuesday, January 30, 2007



Opening Statement of U.S. Senator Russ Feingold
Senate Judiciary Committee Hearing
Exercising Congress’s Constitutional Power to End a War

January 30, 2007
Listen to Senator Feingold's Opening Statement
Good morning, and welcome to this hearing of the Senate Judiciary Committee entitled "Exercising Congress's Constitutional Power to End a War." We are honored to have with us this morning a distinguished panel of legal scholars to share their views on this very important and timely issue.
I thank Chairman Leahy for allowing me to chair this hearing. Let me start by making a few opening remarks, then I will recognize Senator Specter for an opening statement, and then we will turn to our witnesses.
It is often said in this era of ubiquitous public opinion polls that the only poll that really matters is the one held on election day. On November 7, 2006, we had such a poll, and all across this country, the American people expressed their opinion on the war in Iraq in the most significant and meaningful way possible -- they voted. And with those votes, they sent a clear message that they disagree with this war and they want our involvement in it to stop.
The President has chosen to ignore that message. So it is up to Congress to act.
The Constitution gives Congress the explicit power "[to] declare War," "[t]o raise and support Armies," "[t]o provide and maintain a Navy," and "[t]o make Rules for the Government and Regulation of the land and naval Forces." In addition, under Article I, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." These are direct quotes from the Constitution of the United States. Yet to hear some in the Administration talk, it is as if these provisions were written in invisible ink. They were not. These powers are a clear and direct statement from the founders of our republic that Congress has authority to declare, to define, and ultimately, to end a war.
Our founders wisely kept the power to fund a war separate from the power to conduct a war. In their brilliant design of our system of government, Congress got the power of the purse, and the President got the power of the sword. As James Madison wrote, "Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded."
The President has made the wrong judgment about Iraq time and again, first by taking us into war on a fraudulent basis, then by keeping our brave troops in Iraq for nearly four years, and now by proceeding despite the opposition of the Congress and the American people to put 21,500 more American troops into harm's way.
If and when Congress acts on the will of the American people by ending our involvement in the Iraq war, Congress will be performing the role assigned it by the founding fathers -- defining the nature of our military commitments and acting as a check on a President whose policies are weakening our nation.
There is little doubt that decisive action from the Congress is needed. Despite the results of the election, and two months of study and supposed consultation -- during which experts and members of Congress from across the political spectrum argued for a new policy -- the President has decided to escalate the war. When asked whether he would persist in this policy despite congressional opposition, he replied: "Frankly, that's not their responsibility."
Last week Vice President Cheney was asked whether the non-binding resolution passed by the Foreign Relations Committee that will soon be considered by the full Senate would deter the President from escalating the war. He replied: "It's not going to stop us."
In the United States of America, the people are sovereign, not the President. It is Congress' responsibility to challenge an administration that persists in a war that is misguided and that the country opposes. We cannot simply wring our hands and complain about the Administration's policy. We cannot just pass resolutions saying "your policy is mistaken." And we can't stand idly by and tell ourselves that it's the President's job to fix the mess he made. It's our job to fix the mess, and if we don't do so we are abdicating our responsibilities.
Tomorrow, I will introduce legislation that will prohibit the use of funds to continue the deployment of U.S. forces in Iraq six months after enactment. By prohibiting funds after a specific deadline, Congress can force the President to bring our forces out of Iraq and out of harm's way.
This legislation will allow the President adequate time to redeploy our troops safely from Iraq, and it will make specific exceptions for a limited number of U.S. troops who must remain in Iraq to conduct targeted counter-terrorism and training missions and protect U.S. personnel. It will not hurt our troops in any way -- they will continue receiving their equipment, training and salaries. It will simply prevent the President from continuing to deploy them to Iraq. By passing this bill, we can finally focus on repairing our military and countering the full range of threats that we face around the world.
There is plenty of precedent for Congress exercising its constitutional authority to stop U.S. involvement in armed conflict.
In late December 1970, Congress prohibited the use of funds to finance the introduction of United States ground combat troops into Cambodia or to provide U.S. advisors to or for Cambodian military forces in Cambodia.
In late June 1973, Congress set a date to cut off funds for combat activities in South East Asia. The provision read, and I quote:
"None of the funds herein appropriated under this act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other act may be expended for such purpose."
More recently, President Clinton signed into law language that prohibited funding after March 31, 1994, for military operations in Somalia, with certain limited exceptions. And in 1998, Congress passed legislation including a provision that prohibited funding for Bosnia after June 30, 1998, unless the President made certain assurances.
Our witnesses today are well aware of this history, and I look forward to hearing their analysis of it as they discuss Congress's power in this area. They are legal scholars, not military or foreign policy experts. We are here to find out from them not what Congress should do, but what Congress can do. Ultimately, it rests with Congress to decide whether to use its constitutional powers to end the war.
The answer should be clear. Since the President is adamant about pursuing his failed policies in Iraq, Congress has the duty to stand up and use its power to stop him. If Congress doesn't stop this war, it's not because it doesn't have the power. It's because it doesn't have the will.
Last week, Ehren Watada, the first officer to publicly refuse to deploy to Iraq appeared on NPR's Fresh Air with his attorney Eric Seitz where they were interviewed by NO HELP TO ANYONE Terry Gross.  Gross cited the laughable Seattle Times editorial  and Watada's response was:
When we join the military we don't swear an oath to a person or, especially officers, in our oath we do not swear an oath of loyalty to any one person or any  group of people or even an institution.  We swear an oath to protect the Constitution and also the American people as a whole and we have to follow the rule of law as it says in the Constitution and when we have .  .  . When I joined the military in March 2003, I believed the administration when they said there were Weapons of Mass Destruction in Iraq, there were ties with Sadam to al Qaeda and 9-11.  We all know those lies were false now and there have been many reports coming out of retired CIA analysts and officers saying that the intelligence was not bad it was intentionally falsified to fit the policy.  When we have as I said a group of people in our government who mislead the public who mislead the other branch of government in order to justify their war that is a violation of the Constitution.  And, um, I just have to say that regardless of what they convict me on, if they convict me or sentence me, I am doing what I swore an oath to do when I joined the military 3 years ago and as I said I did not realize the extent of the deception that was waged upon us that I do now.
That was the first segment of the January 25 show.  The second is where she got into real trouble and there's a reason for that:  Terry Gross can find a man anywhere.  Her next book might need to be entitled Manhunt.  It's women she can't find.  And she's far from alone on that -- as of the February 5, 2007 issue of The Nation, for the magazine to offer women in equal number (equal, not more) there February 12, 2007 issue would have needed to print 37 pieces written or co-written by women and none by menThe Nation ratio by gender is basically 1 female for every 4 males.  Gross specializes in her nerdy dominitrix pose on air -- full of tension and archness -- and it's a laughable bit but she's made it profitable.  What she has not done (appalling when you consider that NPR broke down barriers for women -- including Gross) is do her part to offer women an equal platform.  Appalling considering the history of NPR, more appalling considering the information she was seeking in the second segment of the show when she interviewed Eugene Fidell asking him questions about issues that he frequently hems and haws on.  If you're asking about the Law of Land Warfare, Gross, you can go to a woman.  Retired colonel Ann Wright taught that. 
NPR audiences were cheated out of a full discussion about Ehren Watada because Queen Bee Gross can have countless males on her show each week (several guests each day) but somehow more than two or three women send Gross into a panic.  It's harmful to all women and, in the case of Ehren Watada, it prevented Gross from being able to find the answers to her questions. 
Had Ann Wright been invited into the second segment (instead of one male 'expert') she could have stated, "As part of our overal military training there is a history of service personnel being told that you do not have to follow an illegal order.  It comes from the commissions that we take that we are to uphold the lawful orders of our superios.  Implicit in that is that if there is an illegal order you are under no obligation to follow it."  Wright served in the military, served in the US State Department and the quote is from what she testified to in the August Article 32 hearing. 
Ehren Watada faces a court-martial on February 5th (and got the Diane Sawyer "Aren't you ashamed!" treatment from Gross last week).  Though it never would have been the court-martial of Sarah Olson (despite where independent media put their emphasis in what passed for 'coverage'), she and Gregg Kakesako will not appear in court.  All the hand wringing was for nothing.  All the, "Phil, you've got to write about this!  We need you!" phone calls were a waste of time.  Already today Amy Goodman's interviewed Olson and no one ever needs to do so again.  Goodman made the mistake of asking a very basic question -- Now that she's not going to be asked to testify, will she be covering the court-martial?  It was too much for Olson -- she sputtered, she stammered, she had no answer.  The parody "Run, Olson! Run!"
never looked so true.
Ehren Watada was always the defendant in his court-martial -- even if that basic point couldn't be grasped by indy pundits.  The charges reduce the maxiumum number of years Watada could serve if he is punished in the court-martial -- from six years, it has now dropped to a maximum of four years in prison.  Eric Seitz, Watada's civilian attorney, told AP, of the kangaro court awaiting his client: "This is not a justice proceeding but a disciplinary proceeding.  Really, the only thing the Army is interested in here is what kind of punishment to mete, not whether Lieutenant Watada is guilty or innocent of the charges."
Watada is a part of a movement of resistance with the military that includes others such as Agustin Aguayo (whose court-martial is currently set to begin on March
6th), Kyle Snyder, Darrell Anderson, Ivan Brobeck, Ricky Clousing, Aidan Delgado, Mark Wilkerson, Joshua Key, Camilo Meija, Pablo Paredes, Carl Webb, Stephen Funk, David Sanders, Dan Felushko, Brandon Hughey, Jeremy Hinzman, Corey Glass, Patrick Hart, Clifford Cornell, Joshua Despain, Katherine Jashinski, Chris Teske, Matt Lowell and Kevin Benderman. In total, thirty-eight US war resisters in Canada have applied for asylum.
Information on war resistance within the military can be found at Center on Conscience & War, The Objector, The G.I. Rights Hotline, and the War Resisters Support Campaign. Courage to Resist offers information on all public war resisters.
on Matt Lowell who was attempting to receive refugee status in Canada and has heard back from the Immigration and Refugee Board: "Eight pages long, it can be summed up in one word: No."  The article also notes a meeting this Thursday at 7:00 pm at the Tolpuddle housing co-op, common room, 380 Adelaide St. at King Street in London (Ottawa, not England) where you can meet with Iraq war resisters and those "offering support to military resisters."

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