[Congressional Record: July 30, 2009 (Senate)]
[Page S8548-S8549]


 Mr. BYRD. Mr. President, I draw the attention of the Senate to 
a bill I recently introduced, S. 1529, the Executive Accountability Act 
of 2009. This legislation is similar to H.R. 473, introduced in the 
House of Representatives in January by Mr. Jones of North Carolina.
  ``Those who cannot learn from history are doomed to repeat it.'' That 
is Santayana's Law of Repetitive Consequences, and it is the reason I 
introduced this legislation--that we might learn from history so that 
we do not repeat it.
  The Executive Accountability Act certainly addresses lessons learned 
from the debate leading to the Iraq conflict, but it is also a lesson 
we should have learned, and should have corrected, as a result of 
executive branch actions leading to and during the Vietnam conflict, 
World War II, the Mexican War, the Spanish-American War and other 
points in our history when Presidents have distorted the facts, 
withheld critical information, or exaggerated circumstances in order to 
sway public opinion and congressional will.
  History is replete with examples that know no partisan allegiance. 
Presidents from both parties have fallen into the trap of inflating 
fear and distorting facts, if not resorting to outright fabrication, in 
order to win approval for or justify using military force.
  Democratic President Lyndon Johnson misled Congress during the Gulf 
of Tonkin incident in 1964, publicly announcing that a second attack 
had occurred. On the same day, however, a naval commander in the Gulf 
of Tonkin cabled that a review of the second attack was doubtful, 
calling for a complete evaluation before any further action was taken. 
Without the complete facts, Congress passed the Gulf of Tonkin 
resolution, leading the United States in to a war that ultimately took 
more than 55,000 American lives.
  Republican President Richard Nixon expanded the Vietnam conflict in 
1969 by authorizing bombing operations in Cambodia and directing that 
they be conducted clandestinely. Operational reports of the bombings 
were either not made or were falsely described as having occurred over 
South Vietnam rather than Cambodia. A few Members of Congress were 
informed, secretly, of the bombings, but the remainder of Congress was 
deceived about the secret bombing campaign over a nation with which the 
United States was not at war.
  Most recently, of course, another President, his Vice President, and 
other Cabinet officials, used scare-mongering tales of ``smoking guns'' 
and ``mushroom clouds''; of nonexistent weapons of mass destruction; 
dubious tales of mobile biological laboratories; fictional African 
trips to buy yellowcake; and, improbable and unsupported rumors of 
alliances between dictators and terrorists to stampede a fearful nation 
and a spineless Congress into a so-called ``preemptive'' invasion of 
another sovereign nation.
  President Abraham Lincoln, an opponent of the Mexican-American War 
during his service in the House of Representatives, well understood the 
dangers of preemptive war and the need for the constitutional check on 
executive power inherent in the requirement for a congressional 
declaration of war or an authorization to use military force. Lincoln 
condemned President Polk for driving the U.S. into war with Mexico by 
putting U.S. forces in danger on disputed territory. Polk then inflamed 
public and congressional anger by asserting that Mexican soldiers had 
shed U.S. blood on U.S. soil. Lincoln explained his concerns with his 
usual eloquence:

       Allow the President to invade a neighboring nation, 
     whenever he shall deem it necessary to repel an invasion, and 
     you allow him to do so, whenever he may choose to say he 
     deems it necessary for such purpose--and you allow him to 
     make war at pleasure. Study to see if you can fix any limit 
     to his power in this respect, after you have given him so 
     much as you propose. If, today, he should choose to say he 
     thinks it necessary to invade Canada, to prevent the British 
     from invading us, how could you stop him? You may say to him, 
     ``I see no probability of the British invading us,'' but he 
     will say to you, ``be silent; I see it, if you don't.''

  Lincoln went on to say,

       The provision in the Constitution giving the war-making 
     power to Congress was dictated, as I understand it, by the 
     following reasons. Kings had always been involving and 
     impoverishing their people in wars, pretending generally, if 
     not always, that the good of the people was the object. This, 
     our Convention understood to be the most oppressive of all 
     Kingly oppressions; and they resolved to frame the 
     Constitution that no one man should hold the power of 
     bringing this oppression upon us. But your view destroys the 
     whole matter, and places our President where kings have 
     always stood.

  Lincoln's insight considered preemptive wars only against neighbors. 
One can only imagine what he would think of the global reach that the 
current military might of the United States

[[Page S8549]]

gives to an unfettered executive. One can only wonder if Lincoln would 
think the ``good of the people'' has been served by a war that has 
climbed to more than $845 billion in direct costs, with a total cost to 
the U.S. economy estimated by some to be more than $3 trillion. What 
good has been served that is worth the more than 4,000 U.S. combat 
deaths and more than 31,000 U.S. casualties?
  S. 1529 is a simple piece of legislation that applies only in the 
most limited but most important intergovernmental communications--the 
warmaking power. It prohibits the President, Vice President, and other 
executive branch officials from deliberately misleading Congress in an 
effort to persuade the Congress to authorize the use of force by the 
Armed Forces of the United States.
  Officials are not prohibited from being wrong or having incomplete 
facts, but they may not knowingly and willfully falsify, conceal, or 
cover up by any trick, scheme, or device a material fact, or make any 
materially false, fictitious, or fraudulent statement or 
representation. They may not make or use any false writing or document 
that they know to contain any materially false, fictitious, or 
fraudulent statement. If the Congress finds that it has been deceived 
or lied to, the official can be referred to the Attorney General by 
either House of Congress for investigation and judicial action, if 
  The Executive Accountability Act is limited to executive branch 
officials only, and only with regard to lying to Congress and only 
about decisions on the use of force. Therefore, its penalties are 
unlikely to inhibit the normal flow of intergovernmental communications 
by creating a fear that any statement made before Congress might result 
in the threat of prosecution.
  To those who say that there are already laws that prohibit 
individuals from making false statements to Congress, rendering the 
Executive Accountability Act unnecessary, I urge them to read the 
history of the False Statements Act, section 1001 of Title 18, U.S. 
  In 1995, the Supreme Court ruled in Hubbard v. United States that 
section 1001 covered only false statements made to the executive 
branch, not to the judiciary or to Congress. Congress then moved to 
reverse the ruling by legislating changes to section 1001 in 1996. 
However, that bill, as enacted, applies only to administrative matters 
within Congress and any investigation or review conducted pursuant to 
the authority of any committee, subcommittee, commission or office of 
the Congress.
  The Executive Accountability Act clarifies the requirement for honest 
testimony and discussion with the Congress about the most important 
question debated by Congress and provided by the most authoritative 
officials of the government.
  The Framers were absolutely clear about the warmaking power: they 
gave the President the authority to lead troops after war was declared 
and to repel invasions of the United States, but only the Congress 
could authorize the use of force--the ability to send troops into 
battle. The Framers were well aware of the dangers inherent in vesting 
the warmaking decision with a single executive, having the history of 
the world's kings and emperors as their foundation.
  Our recent history has shown us that a powerful and persuasive 
executive can, and too often has, used his command of the intelligence 
and information gathering and dispensing functions of government to 
paint a distorted picture designed to frighten and sway Congress into 
ceding even more power to him. Presidents of all political parties have 
shown themselves to be equally susceptible to the lure of absolute 
power, making the Executive Accountability Act a non-partisan solution 
to a deep-seated problem.
  S. 1529 restores balance to the system of checks and balances by 
reinforcing the role of Congress in decisions to use force. Congress 
does not have millions of civil servants working for it. It does not 
have its own intelligence community or its own diplomatic corps. 
Congress must rely upon the executive branch for those missions and for 
the product of those missions. So Congress must be confident that the 
information it receives is complete and factual--particularly when that 
information is used to inform a decision to commit U.S. troops and U.S. 
treasure to any foreign battlefield. Testimony and communications from 
the White House and the executive branch must be reliable--not 
fictional, not distorted, not embellished, not cherry-picked for the 
purpose of supporting only the decisional outcomes desired by the 
  I urge my colleagues to support S. 1529. It is not retroactive. It 
will not reach back to affect any statements made by previous 
administrations. We can learn from the past, make this necessary 
correction, and move into the future with greater assurance that the 
most difficult and consequential decisions made by Congress--those 
involving the use of military force--will be made on the basis of open 
and frank discussion based on all of the facts.