War Powers Resolution

Floor Speech

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Mr. KAINE. Mr. President, I rise to talk about the next vote the Senate will have on a War Powers Resolution, and this will be the eighth such vote. I want to dig into the topic for a minute why this vote is different than the earlier seven. Before I do, let me just kind of dig into the procedural nature of this vote.

War Powers Resolutions, like other Senate legislation, get referred to a committee--in this case, the committee of jurisdiction is the Senate Foreign Relations Committee, of which I am a member.

The committee does not have to take up legislation, and it is often the case--and I have often filed legislation that has never been taken up, not just by SFRC but other committees as well. If there is not a critical mass, it may not be taken up.

In matters of war, the drafters of the War Powers Resolution deemed the topic so important that they created a proceeding by which a single Senator could ask that the committee be discharged from consideration of the bill and the bill be reported out of the committee without a recommendation for actual consideration on the floor.

And so War Powers Resolutions in the instance of hostilities that have not been authorized by Congress, a Senator can file a resolution, a certain number of days elapse, and then we can come to the floor and ask for the committee to be discharged.

We have had seven earlier votes--all unsuccessful--asking that this war, which is now, I believe, on day 81, be--if a committee is not going to take it up, let's at least have the debate on the floor of the Senate that the Constitution intends.

And so the formal vote that we will have later is not a vote on the resolution itself, which says no war in Iran absent a vote of Congress, but it is a vote to discharge that resolution from the committee and allow it to be debated on the Senate floor. That is what we are voting on.

Should a matter that is in committee, that has been held in committee with no action for now 80 days during the midst of a pending war in which 14 American troops have been killed, hundreds have been injured, and we have spent north of $29 billion--if we are not going to have committee action on the bill, can we not take it up on the floor of the Senate and debate it in front of the American public?

So now to my question: Why is this vote different than the vote we had last week? And I would argue there are a couple of reasons that make this vote different and the stakes higher that should suggest a need to finally take this matter up on the Senate floor.

First, we are now well past the 60-day deadline in the War Powers Resolution that, under the view of some, provides a President the ability to unilaterally take the Nation to war without a vote of Congress. I don't read the statute that way, but a number do, and we can have a good-faith disagreement about what the statute means.

But last week was the first time we had a vote after the 60-day deadline. The clock keeps running. We are now, I believe, at day 81. We are well past the statutory time that might give a President an argument that ``I don't need to come to Congress to get a war approved.''

The fact that we are now well past that deadline--a deadline that many of my colleagues on both sides of the aisle say should be an important milestone in terms of congressional review--is important.

The second thing that is important is we are in a cease-fire, but kind of a particular cease-fire right now. We are in a cease-fire where there is no active bombing, but there are still hostilities--the blockade of Iranian ports by the United States, the significant closing of the Strait of Hormuz by Iran's military action--action taken against both military ships and commercial ships. We are in a cease-fire, but we have not ended hostilities, but the cease-fire entered a new phase just within the last day or two.

As you know, President Trump indicated that he was within an hour of ordering the restart of the bombing campaign but decided that it would be a good idea to engage in discussion with regional nations about: Could there be a path forward to find a diplomatic end to the war?

And my argument, Mr. President, to you and to all of my colleagues and to the American public is this: If we are in a cease-fire where we are trying to find a diplomatic path forward, rather than precipitously start a bombing campaign again, this is exactly the time where Congress should be having a debate about the rationale for the war, the status of the war, the plans to reopen the Strait of Hormuz, what a likely diplomatic off-ramp would look like, what the costs of the war are, how much U.S. munitions have been depleted, how much U.S. military facilities have been damaged.

When we are in this cease-fire period trying to find a diplomatic off-ramp, this seems, to me, to be the perfect time for the Senate to have the deliberate discussion about the need for a war that we should have had before the war began on February 28. Let's take advantage of this moment.

One issue in particular that is important right now is that Iran is transmitting to the President of the United States proposals for a diplomatic solution. As all know, Iran presented a proposal to the United States--to President Trump that he immediately dismissed as garbage. Guess what. No one in this body or in the House has been shown what that proposal is. None of us know what was in the proposal that the President dismissed as garbage.

This body contains many Members who have served in the military. This body contains many Members who have been on the committees of jurisdiction--the Armed Services Committee, the Foreign Relations Committee, the Intel Committee--not just for years, but in some instances for decades.

I assert that in the Senate and in the House, there are many people who would have some significant expertise about analyzing a proposal from Iran and determining whether or not it had merit.

Maybe it is a hundred percent garbage. Maybe it is a good offer. Maybe it is somewhere in the middle where there are pieces of it that are good but more needs to be done. But thus far, not a single Member of the 535 public servants serving in the House or the Senate know anything about the deal that the President has thrown out, and that is a very important fact.

Do we want to let--we have let one President take us to a war that has caused the injury and death of American troops, the spiking of gas prices, the spending of $30 billion. We have let him do that on his own. Do we want to also give him the sole ability to review a peace proposal, a diplomacy proposal, an end to the war and to make the decision on his own without any examination by this deliberative legislative body about whether the proposal is something that we can work with?

Are we so willing to let this President tell our sons and daughters: You are going back to war because I have determined that the peace proposal, the diplomacy proposal, is garbage without letting anyone in the article I branch even review it?

I think the fact that there have been peace proposals presented to the President that we have not seen is also something that is extremely important as we contemplate this War Powers Resolution.

Let's have the discussion, including analyzing proposals that have been made, so we can offer our advice to the President about whether diplomacy seems like it is realistic or doable and not have him dismiss deals out of hand without sharing the contents.

And, finally, there is one additional matter that puts this in a different light than last week. It was only last week right before the vote that some of us were informed by the White House that the White House refused to share with Congress the legal rationale for this war. Any administration that takes the Nation to war does so bound to follow the law, and any administration that takes us to war does so on the basis of a legal opinion developed by the Office of Legal Counsel at the Department of Justice. And that has been the case during all of the administrations that I have served under including President Trump term 2.

The boat strikes that President Trump's administration were carrying out in the Pacific and Caribbean, the military operation in Venezuela-- they were both justified by a legal opinion.

Now, I was disappointed that the President was unwilling to make that legal opinion available to the public, but the White House did allow us--the Members of the Senate and House--to read it in a classified setting so we could at least read what the legal rationale was and reach our own conclusion about whether we thought the legal rationale made sense.

To my knowledge, in my now nearly 13 years in the Senate, this is the first instance of a President taking us into military action and refusing to show the House or Senate the legal opinion. There is a legal opinion that has been drafted to justify this war, but the administration will not let any of us--I thought it might just be me-- they turned down my request to look at the legal opinion--but I have gone to the leadership of the Armed Services Committee and the other key committees, and they haven't seen it either.

Are we really willing to go to war on the basis of a legal opinion that the administration is unwilling to even show to us who are Members of the U.S. Senate? I mean, it sort of raises the question: What are they hiding? If they feel confident about their legal rationale or about the factual assertions they would make in the legal rationale, they would be willing to show it to us--as they have with respect to other military actions as recently as the attack of Venezuela to depose the Maduro government.

So I would argue that one important feature of this motion at this time to discharge the committee would be it would force the administration to come forward and finally show us the legal rationale upon which they base this, in my view, illegal and unwise war.

So those are at least four or five reasons why this vote this week to discharge this matter from the committee and finally bring it to the floor of the Senate is different than any of the seven votes we have had before. We are well beyond day 60. We are in this fragile cease- fire. That is the perfect time to have a discussion before we start up the war again.

The President is receiving peace and diplomatic proposals that he is throwing into the trash can without sharing them with us. We might have some ideas about the merit and validity of those proposals, and we ought to be able to decide whether they have merit enough that that is the path we should take instead of sending our sons and daughters back into harm's way by reengaging in the bombing campaign.

Finally, if the administration is unwilling to share with us the legal rationale for the war, that should be a flashing red light to every Member of this body.

So, Mr. President, within a short period of time, I will come to the floor and make the motion, and we will have this vote on an eighth motion to discharge. It is my hope that it is successful and we finally move to having a debate about this most consequential war in full view of the American public.

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