Pressure Grows for Overhaul of War Powers Act

After 14 years of intense bickering over the meaning of the War Powers Resolution, there finally appears to be a growing consensus among Democrats and Republicans in Congress that the controversial Vietnam-era law is unworkable and must either be clarified or repealed.

A desire to end the quarreling arises out of the current dispute in Congress over how to respond to President Reagan’s policy of providing U.S. Navy escorts to 11 Kuwaiti oil tankers now sailing the Persian Gulf under the American flag.

Although there is little doubt that recent clashes between U.S. and Iranian forces in the gulf constitute “imminent hostilities,” which technically trigger the War Powers Resolution, neither the Democratic-controlled Congress nor the President is willing to invoke the law. Reagan contends that the law is unconstitutional; many members of Congress view it as flawed.

Nor is it the first failure to invoke the War Powers Resolution during a military crisis involving the United States. In fact, although the resolution has been on the books since 1973, it has never been invoked in its purest form by Congress, and it has never been willingly obeyed by any President.

“After 14 years in which every President from Nixon to Reagan has refused to acknowledge the constitutionality of this law--14 years in which the law has failed to operate as envisaged--a review is clearly called for,” declared the Senate Judiciary Committee chairman, Joseph R. Biden Jr. (D-Del.).

“Let us face up to the War Powers Act,” said Sen. Patrick Leahy (D-Vt.). “If we do not want to face up to it, then let us be honest enough and just repeal it.”

Predictably, however, as more legislators begin to propose better ways to achieve the original objectives of the War Powers Resolution, there are almost as many different ideas under consideration as there are members of Congress--including legislation, court cases and commissions. Leaders of both parties acknowledge that a solution will be difficult to find.

Enacted over a veto by President Richard M. Nixon, the War Powers Resolution was intended to prevent any President from committing U.S. troops to any conflict--as Harry S. Truman did in Korea and Lyndon B. Johnson did in Vietnam--without the expressed approval of Congress. It was designed to preserve Congress’ constitutional right and obligation to declare war in an age when the nature of war is changing and most wars do not begin with a formal declaration.

“What we said in passing the War Powers Act was: If Americans are going to lose their lives in conflicts overseas, Congress has to share in the responsibility,” said Leahy. “It was intended to get Congress in at the beginning of such a commitment, instead of in the middle, when our only recourse was to support American troops in combat.”

‘Imminent Hostilities’

Under terms of the War Powers Resolution, the President must report to Congress, within 48 hours after U.S. troops enter into “imminent hostilities,” on the anticipated scope and duration of the conflict. Troops then must be withdrawn within 60 days--or 90 days, if the President seeks an extension--unless Congress authorizes their continued presence.

In practice, the law has become a tremendous burden to both Congress and the President--a flash point for controversy between the executive and legislative branches every time American troops come under hostile fire in a foreign land.

“The act has been a failure,” said Sen. Alan Cranston (D-Calif.). “It has not prevented Presidents from pursuing risky military adventures before enlisting congressional support. It has not facilitated unity between the legislative and executive branches.”

In the Persian Gulf, for example, Reagan has insisted that the War Powers Resolution is not applicable, and, despite endless hours of debate, a filibuster by GOP conservatives has kept the Senate from voting on a motion to invoke it.

All Presidents Balk

Understandably, no President wants to commit himself to a procedure controlled by a potentially disapproving Congress that would restrict his options in a military conflict. And many members of Congress, too, recognize that invoking the resolution suggests weakness on the part of the United States in times of crisis.

As Sen. David Boren (D-Okla.) noted in the current crisis, “We are sending notice to those who would test our will and resolve, who might try to inflict punishment on our own young people exposed to certain dangers in the Persian Gulf right now, that we are in a state of limbo or suspension about the decisions we are going to make.”

For this reason, every President since Nixon has sought to skirt the War Powers Resolution in times of military confrontation by filing reports with Congress that are “consistent with” the terms of the law but without directly recognizing the applicability of the law.

Still, most members of Congress feel a strong obligation to assert their will in these situations, and they note that it is not in the President’s interests, either, to embark on a dangerous military operation without support of the American people and the Congress.

People in the Dark

“The people of this country cannot be asked to give their sons and daughters in the implementation of a policy about which they know very little and about which they (White House officials) refuse to come to the Congress to explain,” said Senate Majority Leader Robert C. Byrd (D-W. Va.).

In a new effort to establish the constitutionality of the War Powers Resolution, more than 100 House Democrats led by Rep. Mike Lowry (D-Wash.) filed suit in U.S. District Court on Aug. 7 seeking to force Reagan to file a report with Congress on the Persian Gulf situation under the terms of the war powers law. A ruling is likely within the next month.

Many skeptics expect the House suit to be thrown out of court on grounds that Congress has the power to enforce the War Powers Resolution simply by using its power of the purse to withhold funds for the Persian Gulf operation--something that Congress appears unprepared to do.

In the Senate, meanwhile, Minority Leader Bob Dole (R-Kan.) hopes to go directly to the Supreme Court after enacting legislation that would enhance the standing of Congress to seek a prompt court ruling on the constitutionality of the legislation--much as Congress did in the case of the highly disputed Gramm-Rudman balanced budget act.

Drafting Revisions

In addition, both Dole and Byrd are drafting bills designed to change the war powers law. Among other things, Byrd and Dole agree that the resolution needs to be revised to deal with a type of international conflict--state-sponsored terrorism--that was not anticipated in the post-Vietnam era.

“ ‘War powers’ was intended to ensure the United States would not become involved--through incremental or massive escalation--in a war without the approval of Congress,” noted Sen. David Durenberger (R-Minn.). “It is less workable, however, when the scenario is a high-risk, but not a ‘warlike’ policy.”

In the Persian Gulf situation, the lawmakers noted, the War Powers Resolution is not precise enough to allow Congress the right to challenge the reflagging policy without also challenging the presence of U.S. forces in the gulf. If invoked, it would withdraw all U.S. forces from the gulf, where there had been an American presence for four decades before the current buildup.

“There is a still deeper problem,” Durenberger added. “Such legislative restrictions actually create an incentive to formulate courses of action designed to avoid the requirements of the law. For example, the 60- to 90-day time limit gives the President an incentive to plan interventions to be short in duration.”

Liberal Democrats such as Cranston would like to restrict the President’s ability to commit troops under any non-emergency circumstances without first consulting Congress. “The problem is that the 1973 law permits the President to commit troops to hostilities first and then come to Congress later--if at all,” he said.