Think Progress

Satterfield Won’t Say Whether It’s ‘Constitutional’ To Commit Troops Without Congressional Approval

During a House Foreign Affairs hearing yesterday on future U.S. commitments to Iraq, Rep. Gary Ackerman (D-NY) pressed State Department Coordinator of Iraq Adm. David Satterfield to say whether it was “a constitutional requirement” for the administration to “consult with Congress…in the commitment of U.S. forces in a battle zone.”

Satterfield refused to answer, however, saying only that “the administration will comply fully with all of our constitutional requirements.”

Unsatisfied with Satterfield’s answer, Ackerman pressed further. “I’m not asking a hypothetical question,” said Ackerman. “I’m asking if this administration believes that it is duty-bound and constitutionally required to consult to go to war.” Ackerman then agreed to give Satterfield 24 hours “to respond in a formal fashion”:

SATTERFIELD: … I would ask at this point if you would please allow us to respond in a formal fashion to that as a taken question. [...]

ACKERMAN: How much time do you need?

SATTERFIELD: Twenty-four hours.

ACKERMAN: We’re waiting. Will the staff set the clock? Send out for dinner.

Watch it (the fun starts at about 3:00):

In a follow-on panel after the hearing, Yale law professor Oona Hathaway said that “anything that includes an authority to fight” — which Satterfield implied the administration’s agreement with Iraq would — “becomes an agreement that really must be submitted to Congress for approval either as a treaty or as a congressional-executive agreement.”

It has been 24 hours since Satterfield testified. ThinkProgress was unable to get a reply from Rep. Ackerman’s office when we inquired about whether they have received a response yet.

Transcript:

ACKERMAN: If Iraq is attacked, are you stating uncategorically that the administration will take no action…

SATTERFIELD: Mr. Chairman…

ACKERMAN: … until an appropriate course of action is decided, in consultation with the Congress?

SATTERFIELD: Mr. Chairman, the administration will act as any administration would act in defense of U.S. interests.

ACKERMAN: I’m afraid of that. That wasn’t my question.

SATTERFIELD: Mr. Chairman, I can only state that the administration is responsible for the defense of the interests of the United States. It will act in accordance with those interests, but I cannot and will not speculate on hypotheticals.

ACKERMAN: So it is possible that the administration will not consult with Congress?

SATTERFIELD: Mr. Chairman, the administration will act in defense of U.S. interests.

ACKERMAN: Is it within the U.S. interest to consult with Congress in the attack of sending our troops to war and putting our sons…

(CROSSTALK)

SATTERFIELD: Mr. Chairman, these are hypothetical scenarios, and I really cannot comment on them.

ACKERMAN: So is your agreement. It’s based on hypotheticals, is it not?

SATTERFIELD: Mr. Chairman, the agreements, the strategic framework and the status-of-forces agreement, as we have stated, as the secretaries of state and defense have noted on the record, will not contain any form of commitment to either presence of U.S. forces or the missions for such forces, should they be present.

Now, this administration believes as a matter of policy that the continued presence of U.S. forces, the effective presence of such forces, will be required beyond the end of this year. But the agreements to be negotiated do not make any such commitment. That is an executive decision.

ACKERMAN: So the administration is unprepared to commit to consult with Congress, should the need for force be necessary?

SATTERFIELD: Mr. Chairman, the administration, like all administrations, has been willing to consult with the Congress as appropriate, but I cannot comment further on a hypothetical scenario.

ACKERMAN: So the answer is you cannot commit that the administration will consult with Congress, should force be used…

(CROSSTALK)

SATTERFIELD: The administration will comply fully with all of our constitutional requirements.

ACKERMAN: And one of them is not consulting with Congress?

SATTERFIELD: Mr. Chairman, the administration will comply fully with all constitutional procedures.

ACKERMAN: Is there are constitutional requirement, in your view, that the administration consult with Congress…

(CROSSTALK)

SATTERFIELD: Mr. Chairman, I am — Mr. Chairman…

ACKERMAN: … in the commitment of U.S. forces in a battle zone?

SATTERFIELD: Mr. Chairman, I am not a constitutional lawyer. The administration will comply with all constitutional requirements.

ACKERMAN: Well, we’re here to ask specific questions. This apparently is not your grandmother’s SOFA. It seems to me we’re taking a path that’s fraught with danger, and we’re just asking for a comfort level, based on the constitutional requirement and the requirements of the State Department that consultation be held with Congress before the commitment of forces.

And I just want to know, in specific, does the administration intend to comply with that? And you’re being very vague in saying that they’ll…

(CROSSTALK)

SATTERFIELD: Mr. Chairman, the administration will fully comply with all of its constitutional requirements.

ACKERMAN: Is this a constitutional requirement?

SATTERFIELD: Mr. Chairman, I would defer to constitutional experts on this question.

ACKERMAN: Is it your understanding — I mean, I read a part of your resume, which is very, very impressive — and I know that some time you might have read the Constitution. I’m sure you’ve read it many times.

Is it your contention that the administration has to or does not have to consult with Congress? It’s a very simple question, which is the nexus of the whole hearing. And we can either answer that question of whether or not that is a constitutional requirement in your view, the view of the administration, or it’s not.

Otherwise, everything else is hyperbole. And you’ve not answered the question. And I think that this Congress, which thinks that it’s a partner at least in the act of, as a last resort, sending America’s young people into battle, has a responsibility to know if our administration thinks that we’re a partner, as well.

SATTERFIELD: And I have said, Mr. Chairman, we will fully comply with all constitutional prerogatives.

ACKERMAN: And the question is: Is that a constitutional requirement? Does this administration think that anything it wants to do that’s not in the Constitution or that is in the Constitution can be twisted any which way that they want to come out with the outcome that they want and ignore what everybody else thinks is a constitutional requirement?

SATTERFIELD: Certainly not, Mr. Chairman.

ACKERMAN: So does it think that there is a constitutional requirement to consult with Congress? This has never been discussed in the State Department…

SATTERFIELD: Mr. Chairman, you’ve outlined…

ACKERMAN: … whether there’s a constitutional requirement to consult before going to war?

SATTERFIELD: Mr. Chairman, you’ve outlined a number of scenarios that are hypothetical.

ACKERMAN: I’ll ask you specifically. Has the administration discussed this at any level?

SATTERFIELD: Mr. Chairman, I will respond more formally to that question subsequently to this hearing.

ACKERMAN: When shall we call that hearing?

SATTERFIELD: Mr. Chairman, we will provide a response to your specific question.

ACKERMAN: I don’t think that we need to close the hearing, and I don’t think we need a secret answer as to whether or not the administration thinks going to war is their responsibility and not part of a constitutional obligation to consult with the Congress of the United States.

There’s a basic issue here. If the administration thinks it can become a bunch of renegades and go to war at any time without consulting the Congress of the United States and the duly elected people by just saying it’s going to stick to the Constitution and that’s no longer a part of it — this is not a sidebar note that the president makes in a document that he’s signing.

This is already decided by our constitutional founders as to whether or not we share this power. That’s not a hypothetical question. It either is or is not.

SATTERFIELD: Mr. Chairman, your initial hypothetical was if Iraq was attacked, would U.S. forces respond.

ACKERMAN: I’m not asking a hypothetical question. I’m asking if this administration believes that it is duty-bound and constitutionally required to consult to go to war.

SATTERFIELD: Again, Mr. Chairman, I am not a constitutional expert. But in the event of…

ACKERMAN: Neither is anybody else, apparently, that’s in your agency or administration.

SATTERFIELD: Mr. Chairman, in the event of a declaration of war, yes, the administration — any administration — would have to make a request to Congress — in the event of a declaration of war.

ACKERMAN: Can the administration go to war in Iraq again without a declaration of war?

SATTERFIELD: Mr. Chairman…

ACKERMAN: It’s the same question.

SATTERFIELD: Mr. Chairman…

ACKERMAN: You can twist it back…

SATTERFIELD: … I would ask at this point if you would please allow us to respond in a formal fashion to that as a taken question.

You have asked a number of questions about various hypothetical scenarios ranging from a declaration of war to, quote, an attack on Iraq. They require a more detailed and considered response than I can give you today.

ACKERMAN: How much time do you need?

SATTERFIELD: Twenty-four hours.

ACKERMAN: We’re waiting.

Will the staff set the clock? Send out for dinner.

Has divine intervention taken place? Have we gotten any messages from anywhere? Would you like us to recess for 24 hours and come back?

SATTERFIELD: Mr. Chairman, we have offered to provide a response…

ACKERMAN: In 24 hours.

SATTERFIELD: … to a variety of scenarios you posed.

ACKERMAN: I’m sorry?

SATTERFIELD: We will provide a formal response to the variety of hypotheticals that you posed to me.

ACKERMAN: The Constitution is a document. It’s not a hypothetical. This is not a theory that we’re discussing.

The trouble with the administration is that it thinks that the Constitution is optional. It seems to me that it’s already been ratified. I think if we ask the same question of a schoolchild they’d be able to provide an answer other than, It’s hypothetical.

Your proposal that you’ll respond in 24 hours — I’m not sure what you’re suggesting.

SATTERFIELD: Mr. Chairman, you posed a number of successive hypothetical scenarios — again, ranging from an attack on Iraq to a declaration of war. You asked what the legal obligation, constitutional obligation, of the administration would be in response to the spectrum of events.

I am not a constitutional lawyer. We will provide you with a detailed response to this range of hypotheticals.

(UNKNOWN): Would the gentleman yield?

ACKERMAN: There is no range of hypotheticals. I asked you a specific question. You thought it was hypothetical because it hasn’t happened yet, and I think planning depends on figuring out what our response is to things that haven’t happened.

And if you want to know what our response should be, if you want to know why this war went bad, as if any war can go good, is because nobody planned, because everything was hypothetical except the faith that the administration had that it was right and it was just going ahead, damn the torpedoes, full speed.

It is not hypothetical as to what the Constitution requires, and you don’t need a team of constitutional experts.

SATTERFIELD: Mr. Chairman, I am prepared, as is my colleague, to brief fully on the proposed negotiations on the status of forces agreement and a strategic framework.

We are prepared to address the legal questions that arise in the context of those two documents.

With respect to the question you have posed on constitutional requirements in the scenarios you have outlined, we’ll be happy to get back to you with a considered and appropriate response.

ACKERMAN: In 24 hours.

SATTERFIELD: Yes, sir.