This letter from Senate Majority Leader Bill Frist is in response to Howard Baetjer’s open letter of March 17.
Thank you for sharing your open letter with me. For reasons of timing and policy, I cannot in good conscience agree to follow the course you propose in your letter.
Your thought-provoking letter goes to the essence of the Constitution and to relative powers of the Executive and Legislative Branches. However, insofar as the timing is concerned, I feel that given the strong possibility that American men and women may be in action in Iraq in the very near future, to reopen a debate in the Senate on this issue would not serve the nation well. At this difficult time, I feel that the Legislative Branch should send an important message of unity to our forces, to our people, and to the world.
Likewise, for reasons of policy, it is unnecessary to reopen Senate debate in the way you suggest, although any Senator may raise any matter at virtually any time. In fact, the Senate’s action with regard to President Bush’s Iraq policy reflects a solid and strong bipartisan block of support for what he has accomplished to date, and for what he seeks to accomplish. Senate support for the policy is the result of vigorous and lengthy debate over time among members who do not often see eye to eye on everything.
The questions you raise in your letter are extremely important. To restate them: to what extent do the Commander in Chief powers held by the President under Article II overlap or clash with the war powers allocated to Congress under Article I? Are the Commander in Chief powers subject to meaningful limits in other parts of the Constitution? To what degree are the President’s Article II powers subject to scrutiny in the courts? These crucial questions have more than legal meaning. For more than 200 years, they have affected ordinary Americans in their daily lives. During this time, they have generated compelling, and sometimes inconclusive, debate.
This is a debate which may never be definitively settled. The relative war powers of the Executive and Legislative Branches was discussed in the very earliest days of the Republic, in the Federalist Papers and otherwise. Most recently, a in case called John Doe et al. v. Bush/Rumsfeld, on February 27, 2003, the U.S. District Court in Boston dismissed a complaint filed by a anti-war activists for an injunction to stop President Bush from launching a military invasion of Iraq absent a congressional declaration of war. The District Court held that the complaint involved political questions beyond the authority of a federal court to resolve, and that the Constitution’s War Powers Clause does not confer on Congress the exclusive right to determine whether or not the United States will engage in war.
On October 10, 2002 the President of the United States received the authorization of the Congress as embodied in P.L. 107-243, which passed the Senate by a vote of 77-23, and which passed the House of Representatives on that same date by a vote of 296-133, to order military action against Iraq.
The Senate has performed its responsibilities with regard to a possible war in Iraq. By authorizing the President to take steps without further, piecemeal authorizations, sufficient flexibility is afforded to permit a timely response to unforeseen developments. On the other hand, by requiring regular briefings (and such briefings have occurred and will continue to occur), the Senate maintains adequate oversight over operations with regard to Iraq. Finally, the Congress also has other important constitutional tools at its disposal — such as the power of the purse — to ensure that its views are taken fully into account by the Executive Branch.
At the end of the day, what divides us on this issue are not legalities and constitutional niceties. We differ on the best means to address the threat posed by Saddam Hussein — for surely there can be no doubt about the threat posed by this brutal dictator.
I am not eager to send young Americans into harm’s way in Iraq, or to see innocent people killed or hurt in military operations. Given all of the facts and circumstances known to us, however, I am convinced that if we wait, a threat will continue to materialize in Iraq that could cause incalculable damage to world peace in general, and to the United States in particular.
The consequences of a war in Iraq cannot be certain. But our goals and motives should be understood for what we seek: the end of Saddam Hussein’s pursuit and possession of weapons of mass destruction, the liberation of the Iraqi people, the foundation of democratic government in Baghdad, and the spread of peace in the Middle East. These are goals worthy of a great nation, and they are goals worth fighting for.
Senator Frist and Dr. Baetjer are members of the Princeton class of 1974.
