Annotations for Speakers: Clay Katsky

Thank you. Glad to be here.

Well, in terms of what the framers were looking for in war making, they were looking for somewhat of a shared power between the president and Congress. And in fact, this was a major breakthrough at the time. In order to share power with the presidency was a huge break from when monarchs controlled all aspects of war.The framers didn't want to give the president authority to go to war unilaterally.

So the main power that Congress has, granted by Article 1, Section 8, Clause 11, is that Congress shall have the power to declare war. And we've seen over time this sort of power can be useful, but has eroded. The declared wars include War of 1812, Mexican-American War, Spanish-American War, World War I and World War II. But Korea starts this trend of undeclared wars. So the power to declare war has somewhat diminished over time.

There are other powers, though, important powers that Congress has. The rest of that clause talks about the to raise and support armies. It's interesting. It says to raise and support armies, but it also says, but no appropriation of money to that use shall be for longer period than two years. So already Congress, in the Constitution, you have Congress trying to limit, or you have the framers trying to limit, the president's ability to have long, drawn-out conflicts. Even limit Congress's ability at that point.

Yes. To revisit the issue, and so that we're not just stuck in endless wars.

The third important power in that section is to provide and maintain a Navy, which obviously has been extended to the Air Force, and maybe in the future to a Space Force, or something like that. And then the final important power in that clause is to make rules for government and regulation of the land and naval forces. So to some extent, Congress does have control over the naval and land forces, making rules, making laws governing their conduct and such. The final thing, also, that's not exactly related, but is a part of the Congress's war powers in the Constitution, is the Senate's ability to approve and reject international agreements.

Yes. So this is a high bar. And this has caused issues that we could even see recently, something like the Iran deal, which wasn't given to Congress because the bar couldn't be met. So here's an instance of the President going around Congress because Congress wasn't going to be able to give the President what he needed. And that's an example of the power that the President has over Congress. And I think it's fair to say, right, that from the beginning, from Washington's time, there was already tension.

That Presidents have a tendency to want to have more of a free hand, particularly when it comes to military affairs.

Well, really what you see is you see Presidents slowly taking liberties over time with Congress. As you mentioned, starting with Washington, there are issues with England and there's pressure to go to war. And Washington is able to sway Congress in his direction not to go to war by sending diplomatic people out to talk to diplomats in England. So he's sort of so Congress at that point is pushing for war and he's sort of pulling them back. He's showing his his teeth. He's showing that he can do this.

In fact, the House requests documents related to these negotiations and he refuses based on executive privilege, which is the first instance of executive privilege being used. Going forward, you know, you have Thomas Jefferson imposing embargo acts and doing things that Congress was not completely on board with, but was within the president's power. The I'd say the first real instance of the president overstepping his bounds in the war making really comes during the Mexican-American war with with James Polk. Polk, there is not enough support in Congress for war and Polk sends troops down to the border of Mexico intending to incite a war and intending for Congress to jump on board with that war.

One of the things that we see over and over again is that it's very difficult for Congress to pull back once hostilities have been engaged. And, you know, we know that it's very difficult. I mean, Congress has control of appropriations, but it's very difficult to cut off funds for troops in the field. So and this continues to unfold as each war comes, as the country becomes more involved with the outside world, you know, following the Spanish-American war and territorial conquest. Our butting up against outside powers means that the president is gaining power in in this sort of arena.

Well, for one, you know, you look at the threat of national security and the Cold War coming from the Cold War. The threat of national security has been used by the executive to push the idea that only the president can protect the nation. There is some concern that a body like Congress that has endless debates and an endless number of ideas cannot come together quickly enough in order to protect the country in a proper way. A lot of people would say that too many voices are being heard and that you need a single person to make a decision. That said, in the 20th century, Congress has not necessarily used all of its powers to its best advantage. So I'd say one of the things that is not directly talked about in the Constitution, but is a constitutional power that Congress has that relates to war, is their investigatory powers and their powers of oversight.

So it says in the Constitution that all legislative powers herein granted shall be used by the Congress of the United States. And that's basically a general term that where the framers intended Congress to seek out information when crafting or reviewing legislation. George Mason himself said members are not only legislators, but they possess inquisitorial powers. They must meet frequently to inspect the conduct of public office. So over and their oversight powers include subpoena and contempt powers. And those, I think, are the major powers that haven't been used enough in the 20th century.

And when you think about the times that Congress has been most effective inserting itself into foreign policy in the 1920s, in the 1970s, somewhat in the 1980s, it's when Congress has embarked on ambitious investigations into the president's making of war.

Absolutely crucial. And, you know, even founders who did believe in a strong executive like Hamilton still believed that it would be utterly improper and unsafe to give the president full control over foreign policy. So the idea is that the founders wanted to make it difficult to enter war. They wanted to make they were expecting congressional debate to restrain the country from going to war.

Well, I'd say that the why is, you know, somewhat of a psychological factor of the threat of nuclear war that comes, you know, directly after the end with the Cold War, directly after World War Two. The country is afraid. People are afraid that of possible annihilation of possible World War III. There is a sense that there are, as I said before, too many voices in Congress that that you need one single strong person to push forward. You know, the president is tasked with defending the nation. And one thing that really comes clear in the atomic age is that the nation needs defending.

Before that, you know, an attack on Pearl Harbor is the first major attack in over 100 years. And the idea that the United States has once again been vulnerable, that this fortress America no longer exists, the seas are no longer protecting us because these missiles can be coming. It really pushed Congress and the American people into giving the president a lot of leeway in terms of war making powers, in terms of foreign policy and in what I study in terms of intelligence gathering and intelligence work.

So the Congress, even liberal members of Congress, were very, very were very, very easy or quick to give the president green lights on all sorts of covert operations and on assassinations and things like that. It was to some extent you see Congress putting their heads in the stand and allowing the president to defend the nation in whatever in whatever way is necessary. So in part, it's that members of Congress don't want political responsibility for yes.

And, you know, one thing is that, you know, Congress, they have to especially in the House, you know, they're constantly running for reelection and Congress itself is constantly running for reelection. The president only has to get reelected once. Congress is hoping to get reelected again and again and again. And so for them, their political livelihoods are at stake. And if the country, if a war is popular in the country and it's not and it's popular in your district, chances are as a as a congressperson, you're going to support that.

Yeah. Really good question. I mean, so, you know, War Powers Act comes at an amazing time in American history because this act probably could never have been passed at any other time other than in 1973. Nixon is completely on his heels after Watergate. People are still fuming over the Vietnam War. Nixon, Nixon actually. So and the thing that's most remarkable is that Nixon vetoes the the amendment and then it's the the act and then it's overwritten. So from the beginning, this is a major departure that that the president is against going forward. Some presidents see it as unconstitutional and completely ignore it.

So far, there's been little to no impact on the decisions of presidents due to the War Powers Act. It hasn't really restrained them from doing anything. Some. And as I said, some administrations straight up refused to recognize its constitutionality. But in 1975, Ford did submit a report to Congress as a result of his order to send troops to retake the Miagas, an operation to rescue some American hostages. He the troops were recalled within the 60 days, so it didn't actually have an effect. But he did report to Congress if the troops had remained overseas for 60 days, it would have triggered the War Powers Act.

In 1979, Carter failed to notify Congress of the operation to rescue the hostages. That's less about the War Powers Act and more about clandestine operation reporting. But it is sort of similar.

In 1981, Reagan sends Marines to Lebanon when he reported this to Congress. And and after the Marines were attacked, Congress does authorize the Marines to stay in country for 18 months. So that's really the first example of a president state adhering to the War Powers Act or at least stating that reporting to Congress and then accepting Congress's proposal for how to deal with the troops. At the time, Reagan knew that 18 months was a really long time and they probably weren't going to be there for that long anyway. He pulled them out in much less time.

And that would his administration and Bush and Cheney, who gives a dissent to the Iran Contra report, would say that all any effort to infringe on the president's war making powers would be unconstitutional. In 1990, Bush agreed. Bush said that he didn't need congressional authorization to carry out U.N. resolutions in Iraq, but he did report to Congress and ask for congressional support for operations in the Persian Gulf. Clinton authorized airstrikes in various places pursuant to U.N. Security Council resolutions without regards to the War Powers Act, which some in Congress objected to. So the history of the War Powers Act is pretty much that it has done nothing so far. I think that at the time there was a concern.

The War Powers Act was almost written to prevent Vietnam from continuing or to prevent a continuation of what was going on in Vietnam, of leaving troops overseas for an extended time.

Yeah.

Yes. So the so presidents don't like the idea of Congress being involved in clandestine operations at all, starting with, you know, in the early days of the CIA, the way that Congress and the president would converse on these things would be on intelligence operations, covert operations would be done in very informal meetings, you know, in the back offices of these guys with smoke and smoke filled rooms and backs offices, you know, just lunch meetings, things like that. It wasn't until the over drinks, over drinks, mostly.

It wasn't until the 1970s that Congress really struck out and tried to solidify a way that it would be included in the intelligence process. And so what that meant was the creation of the intelligence committees that you see in the news now, these days, the House Permanent Select Committee on Intelligence and the committee that Adam Schiff chairs.

The yes, that Adam Schiff shares in the counterpart in the Senate, the Senate Select Committee on Intelligence created in the 1970s as a way to check up on presidents who, as I said, did not want to share intelligence with Congress and who did not want Congress involved in that sort of decision making process.

The main way that Congress is brought into these into these decisions is comes from the reporting requirements that says before any covert action is carried out, the president must sign a document called a finding that says that the operation is in furtherance of the national security. And this document before the operation takes place needs to be given to the intelligence committees. And the intelligence committees have no veto power over these over this. The president is basically notifying them that he's going to do something.

But what it does is it gives the chance for an exchange of ideas that that the committee will hold hearings, closed doors, hearings over this, get the insights of their members and, you know, send reports back to the president on what they think of this. You know, if the president says that he's going to, you know, take out a general of another country and and Congress says, you know, we're going to be up in arms if you do this, maybe the president then thinks twice.

It's hard to say definitively, but I think that anecdotally, when you look at the years before these agreements were made in the subsequent years after that, they did have a big impact. You know, the the number of clandestine operations actually lowers in as the years go after the 1970s. There's less efforts to overthrow of other governments through military organized coups. There for a while, there's no assassinations.

And, you know, these things change a little bit, as Zach mentioned, in the 1980s with with the Reagan who actually weakens the executive order for against assassinations in order to carry out strikes in Libya against the palace, which are not technically assassinations against Gaddafi, but could definitely be seen as such.

So those provisions on assassinations get weakened in the 1980s. And today, those those provisions against assassinations have been completely muddied by drone warfare and drone strikes. The taking the strikes against terrorist leaders, strikes against specific individuals who are seen as propaganda masters, these sort of things seem somewhat to follow fall under the category of assassination.

Yeah. I mean, a sovereign leader. But I think that in this case, you know, someone with a high position in the government carrying out Iranian foreign policy and leading their military. That's what this is.This isn't a terrorist group. This is a legitimately recognized country.

So it seems to me that that this rises more to a level of an assassination than than the taking out of the terrorist leaders, which I mean, and think about it in American terms. You know, one of the arguments that they're making is that, you know, he was a terrorist because he worked with these terrorist groups, you know.

But what if it was on the flip side? What if there is a an American working with pro-democracy groups in a communist country and that person is taken out? Is that not assassination?

And then, you know, when it comes to the reporting requirements, the president's required to tell Congress about covert actions beforehand. And this was in the 1980s what sparked the Iran-Contra that not only did the president not notify Congress about the covert actions, but Congress had already passed laws against these sort of covert actions. And the Boland amendments were completely violated. And so here you see an executive that doesn't really believe in being restrained by Congress, completely bulldozing over Congress and, you know, isn't in the end held very accountable.

Yeah, I think that, you know, there are, as I mentioned before, certain decades you can look at where this where this worked. You know, the 1920s being a really good example where a block of progressives in the Senate, especially known as the peace progressives, were able to prevent the country from going down another war path. Now, and this is significant because there were efforts by Congress to arrange conventions, to limit the arms races, to outlaw war. These were actual there were bills put forth to outlaw war. There were efforts.

Kellogg-Briand Pact. There's efforts to prevent major efforts in Congress to prevent war.

And, you know, then if you look at the 1930s, you know, even though there's problems, of course, with the Nye Commission, this is a real effort by Congress to prevent the president from sucking the country into war. And it's, you know, somewhat successful until it shouldn't have been.

So and then, you know, you look at the 1970s and actually starting in the late 1960s. And in fact, that's something I think that it's really important to mention is the Fulbright Vietnam hearings. So holding hearings, the 1970s, you know, the uproar against Vietnam and the War Powers Act didn't just come out of nowhere in the 1970s. It came because of these public sized hearings and because of the Pentagon Papers and because of things like that, where Congress was doing investigations, you know, overseeing the executive branch as it should be.

Today, we have things like we have ridiculous investigations, not normal investigations. We have Benghazi investigations, things that are not really rooted in the restraining of executive power. Here we have recently this expose by The Washington Post about these Afghanistan papers about what really had been going on in Afghanistan. Yet there's no effort to have congressional hearings to look into this. What Congress needs to do is they need to hold hearings. They need to use their subpoena power. They need to use the power of contempt when people won't meet the subpoenas. And, you know, have public debates over these things.

I think they have to keep going hard. They have to keep the investigations going. If the president wants to block people from testifying, let him block them, find someone else. It looks bad for the president to block people. Continue to put the president in that position, continue to make it seem that there’s no transparency. If you continually investigate someone who’s not giving you anything, it becomes clear that they’re hiding something.

Yes

Yeah. A lot of this has to do with the authorizations of force from the early 2000s, that the president points to and says, ”This allows us to do this and you’ll have to give us the money.” Now, Johnson made a similar argument during the Vietnam War where he said, ”You guys keep giving us the money. If you wanted the war to end, you could just stop giving us the money.” The appropriations issue is difficult because as I said before, you have troops in the field. You have people who need this money. I think that the only thing that Congress can really do is plan ahead with scheduled decreases.

The idea that Congress is going to tell the president that you’re going to get this much money for the next year’s budget for this war and then the next year it’s going to be less. There has to be some agreement of where the trend is going. Otherwise, the president is going to keep doing what he wants and ask Congress to pay for it later and if Congress doesn’t pay for it, they’re the ones who look bad.

Absolutely. That is the kind of thing that they should be doing there.

Very low approval.

And Trump even.

Absolutely. You nailed exactly that what we should really have going on right now is public discussions about policies. Policies that are set forth should have hearings, they should have public hearings. They should be all discussed in the open for people to hear. Congress is the people’s representatives. They’re the closest representatives to the people, so they really are our voices. You mentioned that we keep voting in the incumbents and people who maybe are getting further away from our voices.

In the 1970s after Watergate, a new class of legislators were elected, that new young class, and major changes were made in the 1970s. Human rights was incorporated into American foreign policy. Major restraints were put against covert action. Huge secrets came out that the government had been trying to keep from people. So it can happen if people get together and they elect the right people in Congress. If there is a new class ready to go, there could be major changes. Presidents come and go and it’s very difficult to steer the ship, but a new class in Congress can actually have a pretty significant impact in just a few years.

Yes

Thank you, guys.

Budding Beatnik.