9/14

September 14, 2001

The attack on the United States this week leaves all of us jolted and angered. To respond to this terror is both our fate and our challenge. Our response to that attack must reflect our national character. As a great nation, we must respond powerfully. But our response must be guided by justice and by our right to self defense, not by vengeance. We must act to hold accountable those responsible for these terrorist attacks. But to be true to our traditions and our Founders, we must act within the confines of the Constitution and the law. I believe that the resolution before us achieves that goal.

The War Powers Resolution of 1973 explicitly recognizes the President's authority to take immediate action as Commander in Chief of the United States Armed Forces to respond to this unprovoked attack on the United States. As such, there is no reason to suggest that the action we take here today is required in advance of any immediate military response by the President. In the interest of demonstrating our national resolve to act firmly and decisively, however, and as a demonstration of our commitment to working in close cooperation with our Commander in Chief to respond to this aggression, we act today to authorize the use of force, as required by the War Powers Resolution.

I commend the President and his administration for seeking the resolution before us today, for working with the Congress, and for recognizing the requirement under the Constitution and the law for joint authorization. As well, I commend those who negotiated the specific language of this resolution, and in particular, Senators Biden, Levin, and Kerry. They deserve our thanks for insisting that we honor the War Powers Resolution.

Like any legislation, this resolution is not perfect. I have some concern that readers may misinterpret the preamble language that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism as a new grant of power; rather it is merely a statement that the President has existing constitutional powers. I am gratified that in the body of this resolution, it does not contain a broad grant of powers, but is appropriately limited to those entities involved in the attacks that occurred on September 11. And I am particularly gratified that this resolution explicitly abides by and invokes the War Powers Resolution.

In taking this action today, we are not responding to a distant threat to international peace and security; we are responding to a direct attack on the United States. This is not a humanitarian response to a foreign crisis, but a defensive action to protect the lives of Americans here at home.

At the same time, we must recognize that this war will be unlike any other we have fought in the past. Our enemy is not a state with clearly defined borders. We must respond instead to what is quite likely a loose network of terrorists that do not function according to a strict hierarchy. We must respond to a highly mobile, diffuse enemy that operates largely beyond the reach of our conventional war-fighting techniques.

Given the immense difficulties involved in identifying our enemies, we must take great care to guard against making mistakes as we pursue them across an obscured terrain. We must not act on misguided prejudices or incomplete information. We must not cause needless harm to innocent bystanders. Our response will be judged by friends and foes, by history, and by ourselves. It must stand up to the highest level of scrutiny: It must be appropriate and constitutional.

Within this confusing scenario, it will be easy to point fingers at an ever increasing number of enemies, to believe that the "the enemy" is all around us, that the enemy may even be our neighbor. The target can seem to grow larger and larger every day, before the first strike even occurs. And this, of course, is exactly what the terrorists want. They seek to inflate their numbers and their influence by retreating into the shadows. They seek to turn us against each other, and to turn us against our friends and allies across the world, but we will not allow this to happen.

We must also take great care to maintain a careful distinction between those organizations or states that have knowingly harbored or assisted terrorists, and those that have acted carelessly in providing unintended aid or shelter. We must punish those who have knowingly supported our enemy, we must strengthen the capacity of all others to respond appropriately. We must invite those who have unintentionally harbored terrorists to work with us to locate them, to eliminate them, to renounce them, and to begin a new era of vigilance, if they are to be regarded as friends of the United States.

Our fight against a faceless, shadow enemy also raises another difficult dilemma, for how will we know when we have defeated this enemy? How can we tell whether our enemy has merely regrouped to strike again on another day or at another hour? There can be no peace treaty with such an enemy, but there must be a lasting and discernible peace. We should consider this in determining the frequency and duration of consultations between the Congress and the President over the conduct and status of this demanding struggle.

-Statement of Senator Russ Feingold
On War Powers
Hat tip: Hugh Hewitt in 2005 over wiretaps issue and series of Presidential Powers posts.
For the latest on Senator Feingold (), go to Flopping Aces.

It would have been great if the Senate were able to call for an immediate vote yesterday, the way the House did during Representative Murtha's "cut and run" strategy last year. Looks like Senator Feingold decided to show us firsthand what a cut-and-run strategy really looks like: foolish!