Frank Bernheisel: The View From Here
Frank Bernheisel
Frank Bernheisel
Posted 03.05.16
Just Outside Washington


In Washington, a debate of sorts

Recently, I went to Capitol Hill to watch a debate entitled The Executive Branch VS. Congressional Prerogatives in National Security Decisions. This was sponsored by the American Foreign Policy Council (AFPC). I had been invited by my friend Liz who is affiliated with AFPC.

To get there I drove from Falls Church to Union Station and parked in the garage. I had a 10-minute walk to the Senate Dirksen Building south on First Street. As you know, Washington was laid out by Pierre L'Enfant in quadrants with the Capitol building in the center. Numbered streets run north/south; alphabetical streets, east/west.

I had not been on Capitol Hill for a number of years and the security there was new to me. First Street is now closed to regular traffic with guard stations, pop up steel barriers, and armed guards. As a pedestrian, I just walked through, no stopping, no fuss. When I entered the Dirksen Building, I emptied my pockets of metal, which was scanned and walked through the metal detector. I was surprised that I did not have to show any ID. I made my way upstairs to Room 106, no problems.

Herman Pirchner, the president of the AFPC, introduced the moderator of the first debate panel, Will Ruger, PhD. who is Vice President of the Charles Koch Institute. The topic: What does the Constitution say and why does it say it? What is the track record of Congress and the Executive Branch on America's use of force? What Congressional and Executive Branch practices, if any, should change?

There were two speakers: Louis Fisher, PhD. who previously served as the Congressional Research Service's Senior Specialist in Separation of Powers (1970 and 2006) and Robert Turner, LLD, who is a former U.S. Senate staffer and executive branch official and a co-founder of the Center for National Security law at the University of Virginia, School of Law.

Fisher and Turner were in agreement that the Constitution said that Congress made the law and the President executed the laws and that the President executed foreign policy. Also, that Congress can legislate specific foreign policy items, such as the Iran sanctions, which the President must execute and interference by Congress in execution was a bad thing.

A number of examples of executive and congressional actions were cited: Thomas Jefferson and the Barbary pirates; Lyndon Johnson and the Gulf of Tonkin Resolution; and the current request by President Obama to Congress for an ISIS war resolution. This was a bit of an academic discussion but then the Constitution is very brief on these topics.

After a quick break to claim our box lunches, Herman Pirchner, introduced the moderator of the second debate panel: Michelle Van Cleave, JD, who is a Senior Advisor at the Jack Kemp Foundation and a former National Counterintelligence Executive. The topic: Can Congress enact whatever laws it may choose restricting the President's freedom of action in foreign affairs? Or does the President have certain powers and responsibilities that Congress may not deny?

Again, there were two speakers: Michael Chertoff is a former Secretary of Homeland Security and now Co-Founder and Executive Chairman of the Chertoff Group, and Jon Kyl, a former senator from Arizona and former Senate Minority Whip.

There was agreement that the President had unequivocal powers as Commander in Chief. Congress clearly had control over the budget for the Army and Navy and the power to declare war.

Most interesting was a discussion on the changing nature of war in which the enemies of the U.S. are not nation states but amorphous groups. This change may make the declaration of war obsolete.

Michael Chertoff was clear on his view of the need for the President to have undeniable powers to deal with some of the aspects of modern war especially cyber warfare.

The majority of the audience seemed to be congressional staff members with a sprinkling of academics, think tankers, and ordinary citizens, like myself. The discussions were interesting and thought provoking even thought they lapsed into the partisan/political briefly a couple of times. But this is Washington after all.