Speeches

Mr. President, the Senate is currently considering S.J. Res. 54. I am proud to be a cosponsor of this legislation--lead cosponsor, along with my distinguished colleague from Vermont, Senator Sanders. He and I, along with Senator Murphy and a number of other Members of this body, have engaged in this bipartisan effort, in a concerted endeavor to make sure that the separation of powers among our three branches of government is respected.

There is perhaps no more morally significant decision made in government than the decision to go to war. Whenever we take an action as a government that puts American treasure and, especially, American blood on the line, we have a sacred responsibility to evaluate and carefully weigh the relative risks and advantages of acting and the relative risks and advantages of not acting.

To make sure that kind of analysis takes place, the Founding Fathers wisely put this power squarely within the branch of government most accountable to the people at the most regular intervals--the Congress. This was a big distinction from our former National Government, based

in London, where the chief executive--the King--had the power to commit troops to war without going to Parliament.

Alexander Hamilton explained this principle in Federalist No. 69. He explained that it was no accident that this power was put in the hands of Congress. To be sure, the power Congress has to declare war means more than simply to state something in the abstract. It is something that has to happen before we put American blood and treasure on the line.

It is something that should never happen in the absence of some type of dire emergency--some set of exigent circumstances in which the President must protect the United States of America from an imminent attack. It needs to be declared by Congress.

This isn't a mere formality; this is the only thing that guarantees that this is a government of the people, by the people, and for the people. It is the only thing guaranteeing that we will actually have a debate about the relative merits of the conflict in question. There are a number of reasons why.

In addition to the fact that there is an obvious economic expense associated with war, there is a tremendous human cost associated with war on our side, on the side of those among whom we might be fighting, and on the side of those against whom we might be fighting.

This particular conflict in Yemen provides one of many examples of the moral perilousness associated with war, of the many moral questions brought about as a result of war. We are involved in a conflict half a world away. We are involved in providing targeting assistance, midair refueling, reconnaissance, and surveillance. We are involved in this conflict as cobelligerents.

As we are involved in that, we are responsible in one way or another not only for the American lives that might one day be directly implicated in this conflict--more than they are today because we know how wars go; we know how they tend to spread. We know that once we put the good name of the United States of America on the line, we are understandably reluctant to walk away from it because of what that might say to the rest of the world.

But in order to make it legitimate, in order to make that decision authentic, in order to make it sustainable, it has to be done in the appropriate way, which means it first has to go to Congress.

Many of my colleagues will argue--in fact some of them have argued just within the last few minutes--that we are somehow not involved in a war in Yemen. My distinguished friend and colleague, the Senator from Oklahoma, came to the floor a little while ago, and he said that we are not engaged in direct military action in Yemen.

Let's peel that back for a minute. Let's figure out what that means. I am not sure what the distinction between direct and indirect is here. Maybe in a very technical sense--or under a definition of warfare or military action that has long since been rendered outdated--we are not involved in that, but we are involved in a war. We are cobelligerents. The minute we start identifying targets or, as Secretary James Mattis put it about a year ago, in December 2017, the minute we are involved in the decisions involving making sure that they know the right stuff to hit, that is involvement in a war, and that is pretty direct. The minute we send up
U.S. military aircraft to provide midair refueling assistance for Saudi jets en route to bombing missions, to combat missions on the ground in Yemen, that is our direct involvement in war.

Now, if you don't agree with me, ask any one of our armed services personnel who is involved in this effort. I would imagine that he or she would beg to differ. I would imagine that the parents, the children, the family members, the loved ones of these brave men and women who have been involved in this effort would beg to differ when told that we are not involved in a war in Yemen.

In any event, regardless of how you define war, regardless of what significance you might attach to direct versus indirect military involvement in a civil war half a world away, it still triggers the constitutional requirement that Congress and not merely the President decide that we are going to get involved in this war.

Look, I understand that there are some competing powers in the Constitution. It was set up deliberately that way. There is some arguable gray area between, on the one hand, the outer limits of the President's Executive authority as the Commander in Chief of the Armed Forces and, on the other hand, the power enjoyed exclusively by Congress to declare war. Because there is some gray area, some matters on which people of reasonable minds might disagree as to where a war begins, Congress, several decades ago, adopted the War Powers Act in an effort to try to delineate the respective powers of these branches. Congress decided, among other things, that it would be significant any time we got involved in hostilities.

Many of my colleagues will argue and many of them have argued on this very day, in fact, that we are not involved in hostilities in Yemen and therefore the War Powers Act is not triggered. Yes, there are a couple of problems with that argument.

One, it is just categorically untrue for the reasons I mentioned a minute ago. We are helping them get to the bombing sites. We are telling them what to bomb, what to hit, what to take out. That is rather direct involvement in war.

Increasingly these days, our wars are high-tech. Very often, our wars involve cyber activities. They involve reconnaissance, surveillance, target selection, midair refueling. It is hard--in many cases, impossible--to fight a war without those things. That is what war is.

Many of my colleagues, in arguing that we are not involved in hostilities, rely on a memorandum that is internal within the executive branch of the U.S. Government that was issued in 1976 that provides a very narrow, unreasonably slim definition of the word "hostilities.'' It defines ``hostilities'' in a way that might have been relevant, that might have been accurate, perhaps, in the mid-19th century, but we no longer live in a world in which you have a war as understood by two competing countries that are lined up on opposite sides of a battlefield and engaged in direct exchanges of fire, one against another, at relatively short range. War encompasses a lot more than that. War certainly encompasses midair refueling, target selection, surveillance, and reconnaissance of the sort we are undertaking in Yemen.

Moreover, separate and apart from this very narrow, unreasonably slim definition of "hostilities'' as determined by this internal executive branch document from 1976 that contains the outdated definition, we ourselves, under the War Powers Act, don't have to technically be involved in hostilities. It is triggered so long as we ourselves are sufficiently involved with the armed forces of another nation when those armed forces of another nation are themselves involved in hostilities. I am speaking, of course, in reference to the War Powers Act's provisions codified at 50 USC 1547(c).

For our purposes here, it is important to keep in mind what that provisions reads: "For purposes of this chapter [under the War Powers Act], the term `introduction of United States Armed Forces' includes the assignment of members of such Armed Forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.''
In what sense, on what level, on what planet are we not involved in the commanding, in the coordination, in the participation, in the movement of or in the accompaniment of the armed forces of the Kingdom of Saudi Arabia and the Kingdom of Saudi Arabia-led coalition in the civil war in Yemen? I challenge anyone to explain that to me--how it is that we are not involved in the way described by 50 USC 1547(c). We are. Because we are under this power-sharing agreement that was reached in the War Powers Act that has been in place over the last four or five decades, we need to follow those procedures. It is one of the reminders we have that we need to respect the separation of powers.

We first brought up this resolution--or one like it--earlier this year. It was about 8 or 9 months ago. At the time we brought it up and got it to the Senate floor, we utilized a privilege status accorded to resolutions like these in order to secure a vote on the Senate floor to try to bring this bill out of committee. At the time, sadly, we received only 44 votes to get it out of committee. That was not enough.

Fast-forward a few months to the week before last when we voted on it again. It was, actually, the same vote, and it resulted in 63 Members of this body supporting the idea of advancing it out of committee.

Then, today, we moved to the consideration of this bill, and we got, if I am not mistaken, about 60 votes for that. I am thrilled, I am ecstatic that we had that result, and I look forward to my colleagues passing S.J. Res. 54 in the coming days. I urge my colleagues to vote for it. I suggest, however, that it would have been even better had we done it sooner.

What, you might ask, changed? What changed between when we voted for this a few months ago and we fell short of the votes we needed and when we brought it up the week before last to discharge it out of committee and then voted today to move to the bill? Well, a number of things have happened.

First, the war in Yemen has continued. We have had a whole lot of people killed in Yemen as a result of this civil war. We have had a whole lot more people in Yemen die as a result of causes related to that war. There has been starvation. There have been all kinds of atrocities that have accompanied that war.

Now, I know--this is war, and war inevitably involves atrocities. War inevitably leads to some people dying as a result of a direct kinetic attack, and it almost inevitably leads to other people dying as a result of starvation or their being subjected to other violent acts or tragic outcomes. I get it. That is what war does. That is precisely why it is unconstitutional and morally bankrupt for us to get involved in a war without the people's elected representatives in Congress voting to do so, without our having the ability to debate it, to discuss it, and to vote affirmatively to put our brave young men and women in harm's way to engage in that war.

What else changed in addition to the fact that this war has gone on and on with a lot of death and suffering and misery by a whole lot of innocent people?

We have also seen that when we pulled back the mask a little bit, when we pulled back the curtains and looked into exactly who we were fighting for and why we were fighting, the people, understandably, got a little freaked out. The death, the murder of a journalist got a lot of people's attention.

I completely agree with the comments that have been made by several of my colleagues that every life is sacred, that every human soul has inestimable worth in the eyes of God and should be respected by each and every one of us. It is therefore sad that it has had to take this long for us to care about it. It shouldn't be the case that we had to wait for a journalist to be murdered for us to care about this unconstitutional, unjustified, and, I believe, immoral war.

Regardless of how we got here, we are here. The murder of Mr. Khashoggi caused us to think long and hard--with good reason--about the fact that we have gone somewhat blindly into war, first under a Democratic President and then under a Republican President, where it has been continued, following, somewhat blindly, the leadership of the Kingdom of Saudi Arabia.

The fact that the Crown Prince of Saudi Arabia has been implicated in the murder of Mr. Khashoggi has caused a lot of people to stop and say: Wait a minute. Maybe this doesn't make sense. Wait a minute. Perhaps this is a regime that we ought not be supporting or at least, at a minimum, regardless of the fact that we may have some interest, some reason to be allied with the Kingdom of Saudi Arabia in some ways, maybe--just maybe--this is enough of a reason for us not to be fighting a war on behalf of the Kingdom of Saudi Arabia. We know this to be true.

Those of us who serve in this body or who serve down the hall in the U.S. House of Representatives know something very significant, which is that if we went to almost any one of our constituents in any part of the country and asked them "Why should we, the United States of America--the greatest military power, the greatest republic, arguably, the greatest civilization the world has ever known--be putting American blood and treasure on the line to fight as cobelligerents in a civil war half a world away in Yemen?'' we know that 99 times out of 100--perhaps 999 times out of 1,000--that it would not result in a confident answer. We know that it would result in an answer full of uncertainty, ambiguity, grave concern, and well-justified fear for the fact that we are involved in somebody else's civil war--in a civil war in which we have no business fighting, in a civil war in which we have blindly followed the Kingdom of Saudi Arabia into conflict.

This is our decision to make. That war results in bloodshed and the shedding of blood that will be on our hands if we fail to exercise our constitutional prerogatives under a system of government in which we have taken an oath to uphold, protect, and defend the Constitution of the United States. I hope and expect that we will do our duty. I hope and expect that we will respect the lives of those who put their lives on the line to protect us.

I urge my colleagues, with all the emotion and all the compassion I am capable of summoning, to vote for and pass S.J. Res. 54.

I yield the floor.