Congress in retreat on war powers reform
THE MEMBERS of the National Commission on War Powers agreed not to disagree, and so produced a report this week that leaves basic constitutional issues unresolved. They considered it a virtue that their proposal "avoids clearly favoring one branch over the other."
What's worse, their recommended substitute for the 1973 war powers law would make it even easier for presidents to begin and continue military operations opposed by a majority of Congress and the American people.
The commission calls the 1973 law "impractical and ineffective." That's half right. It has been ineffective because no president has accepted its validity and several spineless Congresses have failed to assert their rights with votes instead of chest-thumping speeches. It is no less practical than the commission's mushy alternative.
Unwilling to say that either the president or Congress has the preeminent role and power to send US forces into "significant armed conflict," the commission settles on "consultation" between the president and a dozen key leaders in Congress as the preferred solution. It believes that a law requiring the president to have "a timely exchange of views" would be more effective than the current law's mandates for consultation, formal reports, and planned termination of combat operations within 90 days without further congressional support.
Of course, consultation would be good - good for policy and good for politics. But there is no penalty for noncompliance in the commission's draft bill. And thus there is no guarantee that future presidents will be any more forthcoming with lawmakers than their predecessors.
Current law requires consultations and reports whenever the president wants to send troops into hostile situations or when "equipped for combat." The law exempts troop deployments which relate "solely to supply, replacement, repair, or training." The commission proposal lists seven conditions which don't qualify as "significant armed conflict," including actions "to prevent imminent attacks on the United States, its territories, its embassies, its consulates, or its armed forces abroad" as well as "missions to protect or rescue American citizens or military or diplomatic personnel abroad." It even exempts "acts to prevent criminal activity abroad."
Those exemptions are big enough to cover such military operations as the invasions of Panama and Grenada, troops to Lebanon, intervention in Haiti, and probably even the Rolling Thunder bombing campaign after the Gulf of Tonkin incident in Vietnam. It would not be surprising if Vice President Dick Cheney argued that military operations against Iran without any prior consultations with Congress would fit under the "prevent criminal activity abroad" exemption.
The commission says that if exempted operations "transform" into "significant armed conflict" - apparently by lasting more than a week - the president would then be required to consult with the gang of 12 in Congress. There's no incentive or requirement to discuss the issue before that transformation occurs.
Rather than putting the burden on the president to justify and win support for major military operations, the commission tries to force Congress to vote on the issue. In truth, prior Congresses have often failed to give any guidance, support, or opposition for the use of force in many recent conflicts, including Haiti, Bosnia, and Kosovo. The House and Senate took votes on all these conflicts, but they stopped short of passing a bill for the president to sign or veto.
The commission thinks it would be sufficient to require both chambers to vote on a "concurrent resolution" supporting the military operation. But a concurrent resolution never goes to the president for signature - and thus it can't contain the kind of guidance limiting the war aims which Congress passed in 1991 in the first Gulf War and which the commission praises.
Yes, the current war powers law is "honored in the breach rather than by observance," as co-chairmen James Baker and Warren Christopher say. Presidents have largely complied with the law without admitting its limitations on their actions. It's time for Congress to reassert its constitutional prerogatives. It should review and amend current law by adding teeth, not removing them.
We should welcome congressional attention to the commission's flawed proposal even though its particular recommendations would undermine the weak restraints of current law. Congress can do better - if it musters the will.
Charles A. Stevenson is the author of "Congress at War: The Politics of Conflict since 1789."
