Statement On Risch Amendment to Joint Resolution 68

. . . Congressional Record

Mr. LEAHY.  Mr. President, earlier today we voted on an amendment to S. J. Res. 68 that was offered by the Chairman of the Foreign Relations Committee, Senator Risch.  That amendment consisted of one sentence, as follows:  “The President has a Constitutional responsibility to take actions to defend the United States, its territories, possessions, citizens, service members and diplomats from attack.”

On its face, the Risch amendment seems reasonable.  The President does have a responsibility to defend the country.  But as is so often the case, the devil is in the details, or the absence of details, and when it involves engaging U.S. armed forces in hostilities we should pay particularly close attention.  I was among those who opposed the amendment and I want to explain why.

First, it is important to note that the underlying Resolution already states that “[nothing] in this section shall be construed to prevent the United States from defending itself from imminent attack”.  So there is no question about the President’s authority to defend the country.  But the central purpose of the Resolution is to give meaning to the Congress’ constitutional authority – the Congress’ sole power – to declare war.  For far too long this body has surrendered that duty to the Executive Branch. 

In 2002, when the Senate considered whether or not to authorize President George W. Bush to invade Iraq, many in this body argued that providing the President with that authority was needed to convince Saddam Hussein to back down.  I, instead, saw it as Congress abdicating its constitutional duty by providing the President with open-ended authority to use military force against Iraq.  For that reason, among others, I voted no. 

In fact, my worst fears were realized.  Not only was the justification for that war based on lies, but thousands of Americans died, trillions of dollars were wasted that could have been used to fix what’s broken in this country, and the American people are no safer.  Today that authority is being used in ways that no one envisioned or intended, to justify an attack against another country, Iran, nearly two decades later. 

We should learn from that costly mistake.  The obvious implication of the Risch amendment is that any President is authorized, and has an affirmative responsibility, to use military force at anytime, anywhere, indefinitely, to prevent an unspecified attack that might occur sometime in the future.  There is no requirement that it be “imminent”.  There is no requirement that such an attack be anything other than speculative or imagined. 

Given the way this and past administrations have expansively interpreted past authorizations for the use of force, the Risch amendment could be interpreted to further erode Congress’ ability to prevent a President from unilaterally sending U.S. forces into hostilities without prior consultation with, or further authorization from, the Congress.  Such an endorsement – even if unintended – of unchecked Executive power undermines the purpose of the underlying Joint Resolution, and it makes a mockery of the Congress’ sole power to declare war.  That is not something any of us should condone.

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