Bernie Sanders, Mike Lee, Chris Murphy National Security Powers Act Press Conference Transcript

Senator Murphy: (00:00)
All right. Good afternoon, everyone. I know we have a series of votes in the house, so we will try to be brief in our remarks and take some questions before we return to the floor. I am very glad to be joined here today by Senators Lee and Sanders, to introduce a bipartisan sweeping reform of the executive branches, national security powers.

Over the last several decades, there has been a very dangerous shift in national security powers and war making powers from the legislative branch to the executive branch. This shift in national security power to the president has resulted in endless wars, reckless levels of arms sales, and national emergencies that seem to have no termination. The founders were very clear that they wanted the executive branch and the legislative branch to share powers when it came to protecting this country. And to the extent that they believed that one branch versus the other should have supremacy.

I think you just need to read the constitution itself. Article One comes before Article Two and in Article One is a fairly exhaustive list of national security powers that the founders grant to Congress. Chief amongst those is the power to make war. Why did the Founding Fathers give Congress and not the executive branch the power to declare war? Because there’s nothing more serious than sending our soldiers, our troops, our brave men and women into battle, at risk of death. And our Founding Fathers knew that that was a question that needed to be debated throughout the entire country, by the American public, not a decision that should be made by one person. Over the years the president of the United States has been able to begin wars without coming to Congress. Today, we have combat troops in over a half dozen countries, all around the world without having had any debate on the floor of the United States Congress.

That’s incredibly dangerous. And it’s time that we start trusting the national security instincts of the American public. I remember back when president Obama came to Congress asking for authorization to bomb Syria. People said it was foolish because it’s so hard to get an authorization of military force from the Congress. The president should just do it on his own.

Well, if it’s difficult to get the Congress to pass a war authorization, if it’s difficult to get the Congress to authorize an arms sale, if it’s difficult to get the Congress to declare a national emergency, that’s probably for good reason. It is likely because the American public are deeply skeptical of vast national emergency powers and increasing levels of arms sales, and the commitment of our troops overseas. We should trust the national security instincts of the American people, which often involve a much higher degree of skepticism about the ability of the US armed forces to change political realities overseas than is housed in The National Security Consensus here in Washington.

So I will let senators Sanders and Lee talk about their perspectives, but before I hand the microphone over to Senator Lee, let me just quickly talk about the three major provisions in this bill. I’ll talk about two and then actually Senator Lee, who’s really the primary author of the National Emergency Powers section can talk about that section.

When it comes to war making, we shorten the clock. President right now has 60 days to come back to Congress after beginning hostilities. We shortened that time for him to 20 days, but more importantly, we flip the script when it comes to how these hostilities begin and end. Right now, Congress essentially has to proactively withdraw funds from a conflict if the president begins it without an authorization from Congress. This legislation would automatically cease funding for hostilities overseas if the president is engaged in hostilities without an authorization from Congress.

On arms sales, again, this legislation flips the script. Right now the only way Congress can block and arm sale is to pass a resolution to the house and the Senate, and then survive a veto from the president. This legislation requires Congress to proactively vote on large scale arms deals. And those deals cannot go forward without the consent of Congress. Now, will this increase the workload of Congress on national security matters? It will. But I think our Founding Fathers expected that Congress was going to spend a great deal of time protecting this country and making sure that our nation didn’t get involved in unnecessary foreign entanglements.

So yes, it will mean a greater workload for the Foreign Relations Committee and the Armed Services Committee, but this country will be better off from more public debates on the way in which this nation engages in war, the way in which this nation exports wars, and the emergency powers that are housed in the executive branch. It means that the American public will have a much greater say in some of the most consequential decisions that are made by Washington. And I think if that happens, some of the biggest mistakes that have been made by the executive branch in committing United States Armed Forces to fights overseas, that didn’t end up being in the security interests of this country will be less likely to occur. Senator Lee.

Senator Lee: (06:40)
This is a fantastic bill and I’m honored to be a part of it. I really enjoy working with Senator Sanders and with Senator Murphy. And I’m grateful to both of them for their leadership on this.

These are some reforms that are long overdue, they’re much needed, and they’re quite frankly consistent with the constitution. They play into what the constitution already requires. We often speak of the three branches of the federal government as co-ordinate, or in some cases co-equal.

The Founding Fathers understood that the powers that are most dangerous within government, nearly all of them are vested in Congress. This was not an accident. It wasn’t a coincidence. It was deliberate. They deliberately put a lot of these most dangerous powers, including the power to tax, including the power to go to war, to declare war. They put them in Congress. Why would? Because we’re the branch of government most accountable to the people at the most regular intervals.

It’s significant that they did this, not withstanding the fact that every delegate to the constitutional convention knew or had reason to know. And most of them hoped that the first president of the United States, the man around whom Article Two of the constitution was drafted would be George Washington, whom they loved, whom they revered, and whom they had great confidence. Not withstanding their love and affection for him, their trust in him. They also knew that they needed to put these powers in the hands of the branch of government most accountable to the people at the most regular intervals. Every…

… the branch of government most accountable to the people at the most regular intervals. Every member of the House is up for reelection every two years. One third of us are up for reelection every two years. That’s why these powers are put there.

It’s certainly essential, in the case of the war power, where we’re asking for a sacrifice of American blood and treasure. This was a distinct departure from the way our predecessor government based in London had operated. As Alexander Hamilton explained in Federalist 69, under the British system the king could declare a state of war. Once he did so it was up to the parliament to figure out how to pay for it. But the king himself could get us involved in a war. And he routinely did and that’s one of the many factors that led to the American Revolution. So Hamilton explained this was a deliberate departure to make sure that it had to big Congress that would get us involved in a war.

But the other two segments, that explains why I consider it so imperative to deal with the war power part of this. And the war powers really are an area where we’ve deviated so dangerously from the text of the Constitution over the course of many decades, sadly under the leadership of both political parties and both Houses and with the encouragement of White Houses of every conceivable partisan combination, you have had the war power effectively exercised by the White House. And we can’t have that happen.

We also see this with arms sales and with declarations of emergency in the same way. So under the existing body of laws that we have in place, the bodies of statutes, in all three circumstances you basically have to get Congress to act in order to undo action undertaken by the executive, which was itself supposed to be a legislative decision at the outset.

The very first clause of the very first section of the first article of the Constitution says all legislative powers here in granted shall be vested in the Congress of the United States, which shall consist of a Senate and a House of representatives. Article 1 Section 7 then explains the formula you have to follow. Passage in the House, passage in the Senate presentment to the President.

None of these things are supposed to be able to occur without Congress affirmatively acting. And yet we flipped the polarity. So let’s take for example the case of emergencies. Under the National Emergencies Act, sure we can vote to undo these things. But passing a resolution of disapproval, as we’ve seen over time, any president who issues an emergency designation using his vast emergency power also has the power to veto. That’s not how the equation, that’s not how the formula is supposed to work and so this reverses that.

They ought to require Congressional authorization to remain in effect any longer than 30 days, both as to the designation of the emergency itself and as to the use of it. We’ve got I think 37 active live national emergencies that have been designated that are still in effect. Many of these were put in place in the 1970s, and this shouldn’t happen.

One of the things our legislation would do in addition to requiring an affirmative vote by Congress both to recognize the emergency and to validate the exercise of power there under, it would also prohibit any of these emergencies from lasting longer than five years and it would require us to re-up them every year. These are proposals that I believe are long past due and are arriving just in time for us to get some good things done. These are bipartisan issues, they’re issues that are neither Republican or Democratic, they’re neither liberal nor conservative. These are simply American issues that we should all be able to get behind.

Senator Sanders: (11:50)
Let me thank Senators Murphy and Lee for their excellent work on this very, very important piece of legislation. I think it is clear that in the midst of the COVID pandemic, in the midst of the climate crisis, the issue of war and peace may not be on the front burner and people may have taken their eyes off of it. But this is an issue of enormous consequence which must be addressed and in this very important piece of legislation, we do just that.

Let us never forget those times in history when our country tragically was led into wars that never should have been fought and where tens of thousands of brave American troops lost their lives. In many cases, those wars were based on the lies of administrations and it was based on the fact that the United States Congress did not ask the important questions that the American people wanted to have asked. And that process must end. And that is what we are doing in this legislation.

I believe that we have become far too comfortable with the United States engaging in military interventions all over the world with barely any debate in Congress or in the public about the costs and potential unintended consequences of those interventions. The time is long overdue for Congress to reassert its Constitutional role in matters of war and peace.

Article 1 of the US Constitution as you have heard from both Senator Murphy and Senator Lee is very clear, not a debate. It states that it is Congress, not the President, which has the power to declare war. The framers gave that power to Congress, the branch most accountable tor the people. But over many years and under administrations of both parties, Congress has allowed its oversight or authority to wane and executive power to expand.

This legislation is an important step forward toward reasserting Congress’s Constitutional powers. It clarifies and strengthens congressional prerogatives in three key areas, war powers, arm sales, and emergency powers. I also hope it will lead to a larger discussion, both in the Congress and among the American people, because let us never forget that it is the sons and daughters and the young people of this country whose lives are put on the line when presidents make decisions. Not to mention the billions of dollars that are spent in arm sales and military expenditures.

I believe President Biden made a courageous and very difficult decision in withdrawing us troops from Afghanistan, bringing the longest war in our country’s history to an end. Let us be clear, when that authorization was given in 2001 I suspect that not one member of Congress dreamed that American troops would still be in Afghanistan nearly 20 years later under a vague and expansive authorization. All of this is not to say the Congress will always get it right, and presidents will always get it wrong. But what it does say is that on issues so consequential as to whether the young men and women of this country should be asked to put their lives on the line and perhaps die, there must be a kind of debate over these issues that we have not seen in a very long time. That is what the founders of our country envisioned when they wrote the Constitution, and they were right. It is no great secret that-

… Constitution and they were right. It is no great secret that our country today faces massive political divisions. I believe, however, on this issue there is strong support among the American people, whether Democrat, Republican or independent, that we should adhere to the constitution of the United States and that we should not risk American lives and treasure without congressional authorization. Thank you. I’m going to run down and [inaudible 00:16:30]

Great, thanks. Any questions?

Speaker 1: (16:35)
What is the incentive for President Biden or any other president, rather, to sign this piece of legislation when it inherently takes power away from them and gives it to someone else?

Yeah, listen. Residents are never eager to give away their national security powers. And so we understand that any legislation that transfers or changes the existing status quo on national security is going to be an uphill climb when it comes to getting a presidential signature. We believe that this is a means to effectuate provisions of the constitution that Congress and the executive branch are currently in violation of. So we don’t think this is a change in law, we think this is a mechanism to get back into compliance with the highest law of the land. So do I expect that the Biden administration is going to send out a statement of support of this legislation or be eager to sign it? No.

But our hope is that this bill, as comprehensive and sweeping as it is, will stimulate a conversation in Congress that might give us more inspiration to use the powers that we currently have to make sure that we are properly declaring war. Maybe this legislation gets adopted in pieces. Maybe we’re able to convince our colleagues to attach parts of it to legislation that’s moving speedily through Congress and that must be signed by the President. So I think there’s a bunch of different ways that we can ultimately get provisions of this passed. But I think there’s a growing bipartisan coalition around the notion that the imbalance has become unsustainable. And obviously, this can be joined together with the efforts of Senator Kaine and Senator Young. I think you see a really important coalition building in the Senate that can potentially lead to parts of this legislation being passed.

I also think it’s important to remember that properly understood, a rebalancing of each of these powers could be a real benefit to anyone holding the office of President of the United States. Each of those decisions can be toxic and troubling to people on different levels. Once people realize that, in addition to the fact that the constitution already requires it, this also has some practical benefit. I was reminded when Senator Murphy referred to the discussions about possibly going to war in Syria back in 2013, I think we were off on recess at the time. I came back, my wife and I were about to celebrate our 20th wedding anniversary. That’s how I always remember when it was right then.

We came back and I remember we were both getting ready to be briefed and we talked a little bit about what some of our concerns were. At the end of the day, I’m thrilled with how President Obama handled that because he told us what he wanted to do. He invited Congress to come back to review the record. And then after he heard from a number of members of Congress in both houses and both political parties, he said, “Maybe this isn’t the right thing to do.” And I think that saved him from what would have been a lot of headaches. And so I think there are some advantages to presidents doing this.

Speaker 2: (20:14)
Why now, given that the Senate is consumed with this infrastructure fight, the Delta variant is rising? Why did he choose now to put this on the table?

Well, Senator Lee and I have been talking about this for over a year. So we’ve been working on this legislation for a long period of time. It is sweeping and comprehensive. It took us a long time to work with Senator Sanders to get to this product. We also understand that it’s going to take a period of time to educate our colleagues and educate the public about the importance of these measures. So we certainly understand that today, there are other issues that are commanding more attention in Congress and in the American public. But we also know that we need some time to make our case, and so there’s no time like the present to begin.

And we also know that not withstanding the focus on domestic politics, we still have more troops in the Middle East today than we did five years ago. We still have thousands of men and women who are spread out all over the world under threat of harm. So if you are just one day away from the United States falling into war by accident, and this is one of those topics in which Washington can be completely consumed with domestic politics one day and then a switch flips, a crisis occurs, and we are completely consumed by a foreign national security emergency the next day. So better off to get this conversation started now.

Speaker 3: (21:51)
Senator Lee? Polling of conservative voters, I think, shows that the spirit of this legislation is increasingly popular, that conservative voters increasingly want to see an end to some of these long running military bond books. Yeah, I think we’ve seen in the past couple of years a number of senators in your party disinclined to support legislative efforts to that effect and I’m wondering how you reconcile that and if you’re optimistic or do you think it’s likely that an increasing number of your colleagues will succumb to the same conclusion that you’ve succumbed to?

Yeah, I think you’re right. A growing number of conservatives do feel this way. I think most conservatives do feel this way. Sometimes there’s a lag time between where elected officials are and where the voting base is. But those lags end up being worked out in the end, and I think one of the reasons why you’re seeing more senators and more members of the House of Representatives who are Republicans inclined to support this sort of thing is because they’re hearing from their voters, and this is building and it’s building quickly. And to Senator Murphy’s point a minute ago, he and I started working on this long before we knew what the outcome of the last election would be. We both understood that this could end up landing with either a Republican or a Democratic president. But we knew it was that important. And yeah, I’m anticipating a lot of Republicans coming on board. Not just because we’ve got a Democratic president now and it’s easier for them to do that, but I think people are really seeing the bad things that can happen when we get into war accidentally.

Speaker 4: (23:28)
On that same note, there’s an argument. Senator Rubio has expressed this, that the War Powers Act, the 1973 Act is unconstitutional and that, really, Congress has only power over the executive branch in matters of war is the purse strings. So how do you, one, respond to that argument? And two, you have the power of the purse. Why hasn’t that been exercised more frequently in the past 20 years?

If he’s suggesting that it’s unconstitutional, I might suggest that he’s using the wrong term. Perhaps he’s referring to it as a nonjusticiable political question.

… perhaps he’s referring to it as a non-justiciable political question. If that’s what he’s calling it, then it might be that. A non-justiciable political question is one that the courts aren’t willing or able to enforce because they recognize that it’s committed to the two political branches for them to work out between themselves. In other words, I don’t necessarily think a third party could sue in order to enjoin a particular military action on grounds that it wasn’t approved. I don’t think they could invoke the War Powers Act as a basis for that and if they tried, the Supreme court, ultimately, if it went there, would probably say, “Yeah, this is not for us to decide.”

But to say that that is unconstitutional, that the principles embraced in the War Powers Act, or that are embraced in our bill that would clarify and ultimately replace the War Powers Act, to say that that is unconstitutional is to say in effect that the constitution is unconstitutional. It is, after all, up to Congress to declare war. What we try to do in this bill is to clarify what that means. We acknowledge, as did the War Powers Act before this bill, that there can be some gray area between the Article II commander in chief power on the one hand and the Article I power to declare war. It’s a procedural mechanism for helping us between these two branches of government resolve disputes over where that ambiguity exists. But to say that that’s unconstitutional is just incorrect.

Just quickly to this issue of Congress’ powers relevant to appropriations, this bill contemplates using the power of appropriations to curtail the unconstitutional exercise of war-making by the executive branch. In the past, Congress had to pass a proactive piece of legislation to stop funding a war we believed was unconstitutionally declared and entered into by the executive branch. This legislation would automatically withdraw that funding unless there was a authorization by Congress. We are still, in this legislation, falling back on the funding powers in the Constitution in order to manage unconstitutional overreach by the executive branch, we just do it in a different way under this legislation than is currently contemplated.

Speaker 5: (26:37)
Senator Lee, you referred to getting into wars accidentally, which ones? What do you mean by that?

Right, let’s take Yemen, for example. We got into Yemen in 2015 and we were told, “Don’t worry about it. We’re just going to provide a little bit of support in the background for the Kingdom of Saudi Arabia-led coalition effort against the Houthi rebels.”

And it will be over in six weeks.

Right. “This is very temporary. Don’t worry about it. Nothing to worry about here;” and it lasted for years under three different presidents. My hat goes off to President Biden for announcing an end to that, but it didn’t have to last that long.

We have other examples of that. I mean, when you look at how we got involved in Vietnam, it was initially very much a backdoor sort of a thing. Somewhat analogous in some ways to what happened in Yemen. When you look at involvement that we had in Libya starting in 2011, it’s another example of that.

Anytime you open that door just a little bit, you run the risk of it building into something where all of a sudden before Congress has ever had a chance to deliberate and vote on whether to declare war, American national security and our reputation as a country for standing by its word is then at stake and is used as a chip for saying that we have to get into it. That’s what I’m referring to.

We also have authorizations that were intended to cover one enemy and one theater that have been expanded far beyond the contemplation of the Congress that enacted it. One of the important provisions in this legislation is the automatic sunset of all authorizations of military force after two years and the requirement that all existing authorizations of military force sunset in six months, because the danger here is not just that the executive branch enters into a war all by itself, it is also that it takes an authorization granted by Congress and perverts it to cover all sorts of activities that weren’t initially contemplated. This legislation, it builds in protections against that as well.

Speaker 6: (28:56)
On your side, have you had conversations with this yet, with Chairman Menendez, with White House officials? [inaudible 00:29:04].

I’ve been in a very long conversation with the committee and the White House about this legislation. I’m hopeful that we’ll be able to convince the committee to convene a hearing. I think that this dovetails very nicely with the work that Senator Kaine and Senator Young are doing. I think the White House will be naturally skeptical of this legislation, but both President Biden and Secretary Blinken have been on the record recognizing Congress’s power to declare war. They have been willing to enter into negotiations about rewriting the 2001 AUMF. My hope is that given their willingness to look at some of the existing AUMFs, they will also be willing to take a look at some of the provisions of this legislation.

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