Why is it that none of these individuals named for the Miller Center Baker-Christopher commission appeared before the Senate Judiciary Committee last month? Or at the very minimum placed their professional opinions in the record with the Senate Committee?

If they really wish to be heard, they could have contacted the Senate Judiciary Committee, chaired by Russ Feingold, and gone on official record with their individual opinions in the Senate.

Take a little time and read through John Dean's article from FindLaw dated Feb. 09, 2007.

Dean writes about the recent Senate Judiciary Committee hearing chaired by Senator Russ Feingold: Exercising Congress’s Constitutional Power to End a War. The main thrust: "Not what Congress should do, but what can Congress do."

And Edward Kennedy's primary thrust on the committee deals with legal restrictions that might be placed on the president's going to war in Iran.


Here is Senator Fiengold's opening statement in full.

Here is Orrin Hatch's official statement.

Please note: The full written testimony of the following experts are linked through their names.Statements of Constitutional Experts

Professor David Barron from the Harvard Law School opened the testimony. Barron is a graduate of Harvard Law School and clerked for Judge Reinhardt on the U.S. Court of Appeals for the Ninth Circuit, as well as for Associate Justice Stevens on the United States Supreme Court. He served as an attorney advisor in the Office of Legal Counsel at the Department of Justice, before joining the faculty at Harvard Law School in 1999.

Professor Robert Turner graduated from the law school at the University of Virginia and is now a professor there. He co-founded the school's Center for National Security Law. He served as the National Security Advisor to Senator Robert Griffin (R-MI) in the mid 1970's and worked at the Pentagon, the White House, and the State Department during the Reagan Administration, and from 2001 to 2003 worked in the Bush White House Counsel's office.

Professor Turner's statement was based as much on "a practical appreciation of the imperatives of presidential military decision making in a time of crisis as from a deep study of the case law." While the committee was not seeking policy advice, Turner was offering it. He concluded that "Congress does indeed possess the power to limit the broad outlines of hostilities through legislation," but he explained, in effect, why in his view, Congress should not use that power, as a policy matter.

Dr. Louis Fisher is a Constitutional Law Specialist at the Library of Congress. Before joining the Library of Congress, he spent thirty-six years at the Congressional Research Service. Dr. Fisher has published a number of authoritative books relating to legislative versus executive branch conflicts. (And I have most of them on my book shelf.) Dr. Fisher's statement explained that not only does Congress have the power to influence the direction of the nation's military when at war, but its members have the responsibility to do so. Drawing on history, he sets forth what the Framers of the Constitution did, and why they did it. His statement is rich in historical quotations that are not the now-hackneyed comments commonly found in discussion of these issues.

 

For example, in 1793, Fisher reported, Madison called war "the true nurse of executive aggrandizement. . . . In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace."

 

And in 1861, Fisher advised the committee, Attorney General Edward Bates explained that the President is Commander in Chief not because he is "skilled in the art of war and qualified to marshal a host in the field of battle." Rather he is Commander in Chief so whoever leads U.S. armies to battle "is subject to the orders of the civil magistrate, and he and his army are always 'subordinate to the civil power.'"

Bradford Berenson, now a partner at Sidley & Austin, graduated from the Harvard Law School and clerked for Judge Silberman on the U.S. Court of Appeals for the D.C. Circuit and Associate Justice Kennedy on the United States Supreme Court. He also served as Associate Counsel to President George W. Bush from 2001 to 2003, a position in which he focused on the relationship between the Congress and the Executive.

Berenson took an approach similar to Professor Turner's. Accepting that the Constitution and rulings make it very clear that Congress has ample power and authority relating to this nation's military activities, he instead made a policy case as to why Congress should not exercise their power. He acknowledged the nature of his statement when summarizing it for the committee, and quickly conceded, "I think the constitutional scheme does give Congress broad authority to terminate a war."

Professor Walter Dellinger of the Duke University School of Law testified. Dellinger, the former head of the Office of Legal Counsel at the Justice Department under President Clinton, and also acting Solicitor General from 1996 to 1997 (during which time he argued nine cases before the High Court) is a graduate of Yale Law School and a former law clerk for Associate Justice Hugo Black.

"In the absence of any congressional legislation on point," Dellinger said in his prepared statement, "I would be ready to conclude that a president can act on his own authority and pursuant to his own judgment in matters of national security. Once Congress has acted, however, the issue is fundamentally different. The question then becomes whether the Act of Congress is itself unconstitutional."