MARKUP OF H. CON. RES. 227

TUESDAY, MARCH 10, 1998

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERNATIONAL RELATIONS,

Washington, DC.

The Committee met, pursuant to notice, at 4:28 p.m., in room 2172, Rayburn House Office Building, Hon. Benjamin A. Gilman (chairman of the Committee) presiding.

Chairman GILMAN. [presiding] The Committee will come to order. Today we will be considering several measures in open session, and our first measure today is H. Con. Res. 227, relating to the withdrawal of troops from Bosnia. This resolution is privileged in the House, and we should report it either with or without a recommendation by the end of this week. The Chair lays the resolution before the Committee.

The clerk will read the title of the resolution.

Ms. BLOOMER. "H. Con. Res. 227, directing the President pursuant to section 5(c) of the War Powers Resolution to remove U.S. Armed Forces from the Republic of Bosnia and Herzegovina."

Chairman GILMAN. The clerk will read the text of the resolution for amendment.

Ms. BLOOMER. "Resolved by the House of Representatives (the Senate concurring),

"Section 1. Removal of United States"

Chairman GILMAN. Without objection, the resolution is considered as read and open for amendment at any point.

[H. Con. Res. 227 appears in the appendix.]

Chairman GILMAN. The Chair will shortly recognize the distinguished gentleman from California, Mr. Campbell, for purposes of debate only, to introduce the measure.

For the benefit of Members, I'd like to have a general debate on the measure for a few minutes, and then I understand Mr. Campbell has one or more amendments to offer, and we'll recognize him again to offer and introduce them.

I ask unanimous consent Mr. Campbell have 10 minutes in favor of the resolution, and then Mr. Hamilton and I will divide 10 minutes in opposition to the resolution, and then we'll be open to debate on the regular order.

Is there any objection?

[No response.]

If not, it is so ordered.

Let me add that, unless I indicate otherwise, Members are being recognized only to debate the resolution of the amendment under the 5-minute rule.

Mr. Campbell.

Mr. CAMPBELL. Mr. Chairman, thank you for your courtesy on this occasion and throughout this process.

Colleagues, I'd like to draw your attention, please, to a folder, a binder, which I prepared, my staff has put before you. If you'd kindly turn to the first tab after A, the first tab gives an indexafter that, we have the section "Hostilities exist in Bosnia."

Hostilities exist. Imagine how difficult it would be to say that there are no hostilities in Bosnia. There are hostilities in Bosnia. It's a different question whether we should be there, and it's a question that ought to be voted on by this Congress. But there really should not be a question that there are hostilities.

The definition is given there from the House Committee Report. So take a look at that. The best way of interpreting the legislation history in terms of defining a word is what the Committee that reported it out said. The word "hostilities" was substituted for the phrase "armed conflict" during the Subcommittee drafting process, because it was considered to be somewhat broader in scope.

I'm jumping ahead. "Hostilities also encompasses a state of confrontation in which no shots have been fired, but where there is a clear and present danger of armed conflict."

That has two important points here. First of all, that you don't need firing to have hostilities, but, second, at least by a negative pregnant, if you have shots fired, then that surely would be hostilities. That seems to me a fair reading of the history of the phrase.

I'm going to leave for later discussion the constitutional requirement about war, the declaration of war, but there is a very good reason to have a broad definition, rather than a narrow one. So that what starts out as a small war doesn't become a great war, and that the people's representatives are included at the start, and not simply after it's too late.

I then refer you to the second heading there: "Hostilities Since December 1995.” If the shots don't have to be fired—and if shots are fired, it's conflict in constituting hostilities, I have a list of these events that have occurred in which American soldiers have been shot, and American soldiers have died in Bosnia.

Once again, I put to you, it's very difficult to maintain that there are no hostilities when Americans are dying in Bosnia. I emphasize, by the way, that the definition does not require a nation to be at war with another nation, and it does not require that there be a formal declaration. Obviously, that would moot the whole purpose here.

Third, if you turn the page, please, to the heading, "Inferences of Hostilities by Casualties to Non-U.S. NATO Troops," the framers of the War Powers Resolution were careful to include the situation where there was no damage done to American troops, but where the context was such that we were fighting on the side of other countries, and that they were subject to harm, to casualties, and that's for the obvious reason, that that is what you would contemplate by a condition of hostilities.

And there on section 3 I list those again, just that have come to the attention of the press, instances where NATO forces were shot at, wounded, killed in action in Bosnia.

Incidentally, we will, I know, hear from the Administration, but in the Administration's letter, Ms. Larkin, who's here to speak for herself, of course, refers only to deaths, and obviously, death is not the only way of defining hostility. Indeed, as I will say in a minute, it's an extremely dangerous way to define hostility because you then give a perverse incentive to somebody to kill an American in order to get a vote in Congress. That's the danger of defining this after we've already put our troops into a condition where hostilities are likely.

Please turn the page to No. 4, "The inference of hostilities from combat pay." It's a very fascinating argument here that was originally raised, at least in my research-I see the 4-minute light, so I assume I've got 6 more to go.

Chairman GILMAN. We will give you the additional time.
Mr. CAMPBELL. Thanks, Mr. Chairman.

It came to my attention in regard to El Salvador, and there it was a big argument that the troops, that the military personnel were actually getting combat pay, but the phrase is "pay related to a hostile fire zone." I think the word "hostile" is of great importance and significance, and I found out, by calling the Secretary of the Army's representative, and I report it there, that our soldiers in Bosnia have been receiving hostile fire pay. So it's going to be very hard to argue that there are no hostilities in Bosnia.

Last, section 5, as you see at the bottom of that page and carried over to the next one, I anticipate the argument-I anticipate it; we'll hear it, of course, from the Administration-that, well, there may once have been hostilities, but there aren't anymore. The danger of this argument is that if that's the case, then it's very perverse because you evaded your obligation to get the approval of Congress at the time you put the troops in, and somehow the evasion matures into a right. That seems to be exactly contrary to logic.

Rather, at the time the President put troops in, in December 1995, the question should be asked: Was that a condition of hostilities or a condition where hostilities were imminent, as indicated by the circumstances? Both of the phrases, by the way, in the War Powers Resolution. And the answer is, yes, of course, there were hostilities at the time the United States put in troops; that's why we put them in.

Interestingly, even in the letter, to which I'm sure the Administration's representatives will shortly refer-this is dated March 10, by Assistant Secretary of State Barbara Larkin-she refers now that, if my resolution passes, she's against it, and there could be a return to genocide and war. And I emphasize the phrase in the Administration's own letter, "a return to genocide and war." I mean, they've got to admit there was war; there was a situation of hostilities.

And if you take a look at the next page in your binder, you'll see a letter from Under Secretary of Defense Slocum. After I had asked Secretary Cohen, are there hostilities in Bosnia, I got this answer back. And the answer was, well, no, there are not, but we're hopeful that the troops will prevent a recurrence, a return to hostilities—the phrase "a resumption of military hostilities."

So in each case we have a recognition by the Administration that there were hostilities, and what they would have us believe-and I think very dangerously-is that, despite the fact there were hostilities, they ended some moment before the United States put in troops, perhaps an instant before, perhaps a week before. That's a very difficult point to define for them, I guess. And if that's the case, I believe that it is, nevertheless, true that the War Powers Resolution applies, because the imminent recurrence of the clear and present danger of the recurrence of hostilities would qualify as hostilities under the definition, if you go back to the initial page, where we have "hostilities also encompasses a state of confrontation in which no shots have been fired, but where there is a clear and present danger of armed conflict." And I repeat, shots have been fired, and Americans have been wounded, and NATO troops have been shot at and killed.

Turn, please, if you will, to tab B-“B” as in boy. The argument might be raised that, well, we have appropriated funds, haven't we? And, therefore, that has been an approval by Congress. This gets to the constitutionality issue, which is certainly not our business today, but I'm happy to address it, perhaps later, if any Members would like.

But it does bear upon this question, in that the War Powers Resolution was prescient. It knew that Administrations to come, Democrat and Republican, would claim that appropriations made it unnecessary to invoke the War Powers Resolution, and so the framers of the War Powers Resolution said, no, no, you may not infer approval from an appropriation. And whatever else in the War Powers Resolution is alleged to be unconstitutional, surely, this is not; namely, that Congress can say what it will term for its own resolutions. And there is a severability clause in the War Powers Resolution, so that even if the entire rest of the resolution falls, this stays. No appropriation can do the job that is required by the War Powers Resolution.

Turn, if you will, please, now to C, which is the last substantive tab, and this deals with the constitutionality of the War Powers Resolution. At the appropriate time, I'm going to introduce an amendment, and the amendment is going to change the time of my resolution. My resolution now says June. It says, pull the troops out as of June. The amendment will say: Pull the troops out as of 60 days following a final judgment ordered by a court of competent jurisdiction. That, I think, should take care of the best argument against proceeding today; namely, that there is a difficulty in Kosovo that it comes at the wrong time, that it might be right, but not now.

What I want to do is to get a court resolution of the War Powers Act. I want to know if it's constitutional or not, and I can't find that out without invoking it. Congress can't find it out without invoking it. You can't test the case without having the case presented.

And there is one other part which is critical, and then I'm done, Mr. Chairman. I'm coming up on 10 minutes. I'm probably going to go a minute over. So, with your indulgence, I'd like to do so.

We really need to find out if this is constitutional or not. If it's not, then let's get something else. Because what we have right now

is really unfair to both the President and the Congress. And I'm going to suggest to you that we might have had this back in 1990, when our former colleague, Ron Dellums, brought a lawsuit against President Bush. I was in Congress then, and former Congressman Dellums brought the case, saying, the buildup in Saudi Arabia required congressional approval under the declaration of war authority. And the Court threw out his case, and it didn't throw it out on political question grounds. Judge Harold Green of the District of Columbia District said, it is not to be thrown out because of political question, not to be thrown out because of ripeness-excuse me, because of standing, but it will be thrown out because it's not right because Congress has not passed a resolution.

I've got to do this. I'll be thrown out of court if I don't have a resolution. And when I get into court, God willing, and on behalf of you, colleagues, I will argue not only 5(c)—and we'll hear about Chadha, and I'm happy to argue that, give any insight I can on it, but I'll also argue 5(b). 5(b) says, with no action by Congress, the President is obliged to remove troops, if he has not obtained the approval of Congress.

In the lefthand pocket of your folder, I put a text of the War Powers Resolution, and if you'd be so kind, please take a look at 5(b). You'll see it on the third page. Within 60 calendar days after a report, or when a report is required to be submitted, the President shall terminate any use of Armed Forces unless the Congress has given its approval. So 5(b) is probably going to be my better stand in court that the President should have issued the report to Congress as of the time he put the troops in. He hasn't. Therefore, I ask the court to mandamus the President to withdraw the troops, unless he gets our approval. And that wouldn't involve Chadha at all.

But I can't get there because of ripeness, unless I have a resolution. A War Powers Resolution gives me the chance to bring this resolution privilege I don't think I'd get a rule otherwise; I don't think I'd get to the floor otherwise; I've got to go this way. I've got to use 5(c) to get a vote from you, colleagues, and then to the floor, and then from there to court.

And I conclude by drawing your attention to the very final part of my resolution. I do not today at all urge any criticism of the Administration's policy in Bosnia. I explicitly am neutral about it. I don't cast any judgment as to whether we should be there or not, except to say that we should be there only with our approval, the people's representatives.

Thank you, Mr. Chairman.

Chairman GILMAN. Thank you, Mr. Campbell.

Mr. Hamilton.

Mr. HAMILTON. Mr. Chairman, thank you for the opportunity to discuss this matter, and I want to say that my friend, Tom Campbell, is always a gentleman and has proven himself this afternoon to be a legal scholar of the highest order. I appreciate the very strong case he has made. He really is doing a service to this Committee and to the Congress by raising the question of Congress' war power authority, and I have always aligned myself with the general viewpoint that Congress does have a very important role to play in the question of war.