The battle over war powers
The House Foreign Affairs Committee is conducting hearings on proposals to amend the War Powers Act of 1973. One proposal, House Joint Resolution 53, would wisely tighten restrictions on executive war-making by the president. Another, proposed by a 12-member commission led by two former secretaries of State -- Republican James Baker and Democrat Warren Christopher -- but not yet introduced as a bill, would dangerously expand the authority of the president to order acts of war without authorization by Congress. Baker and Christopher are scheduled to testify before Congress on Wednesday about their proposal.
The framers of the Constitution agreed that the president should be commander in chief of land and naval forces, but -- deeply concerned over the gravity of war and as a safeguard against hasty and needless hostilities with foreign nations -- they agreed that Congress should have the prerogative to “declare” or authorize war. The framers meant to prohibit the president from waging war without a declaration of war or specific authorization by Congress, except when necessary to repel attacks on American territory or commerce, its military or citizens. TheBaker-Christopher proposal assaults this crucial prohibition.
In recent history, an unauthorized presidential war brought calamity to the United States. Ambiguity in the Gulf of Tonkin Resolution of 1964 was used as a pretext for executive war-making in Vietnam not intended by Congress. That war was unjustifiable from a military or geopolitical standpoint.
The resolution retroactively approved the retaliation by President Johnson for an attack on Navy ships in the Gulf of Tonkin, and it warned North Vietnam and all interested parties of U.S. readiness to engage in further military operations through the South East Asia Treaty Organization. But it contained no language that actually authorized the president to order acts of war in the future. Johnson nevertheless used it to increase the U.S. commitment in Vietnam to half a million men.
As domestic opposition to the war increased and U.S. forces began to withdraw, Congress passed the War Powers Act of 1973. We were members of the House committee that helped frame this resolution and were engaged in the process until it was passed, over the veto of President Nixon.
It is a necessary and proper law that forbids a president from waging war without authority from Congress, except to repel attack. It requires the president to provide full details in writing within 48 hours of a decision to order war measures or substantially enlarge military forces in a foreign country. It also requires the president to terminate the use of armed forces undertaken without authorization from Congress within 60 to 90 days, unless the country is under attack and Congress cannot physically meet. It authorizes a member of either the House or the Senate to force a vote of disapproval at any time such war-making is underway.
In framing the 1973 resolution, we assumed that enforcement would be attained through vigilance in Congress, with impeachment as the ultimate penalty for any president who willfully violated his authority. It was understood at the time that insignificant use of military force by the president without prior approval of Congress might be tacitly accepted. But the measure signaled that never again would Congress tolerate an overt and aggressive breach of constitutional principle by the president in committing America to a costly war without the approval of Congress.
The War Powers Act has effectively restrained unwarranted and dangerous abuse of military power by presidents. The 1991 Gulf War was authorized by Congress, as were the current hostilities in Afghanistan and Iraq. Those wars remain controversial, but at least they were authorized.
Notwithstanding these realities, the Baker-Christopher panel urges scrapping the War Powers Act of 1973 in favor of a so-called War Powers Consultation Act of 2009, which would increase the war powers of the president far beyond the limits allowed by our Constitution. This commission is asking Congress to approve legislation that would enable the president to start a war -- or in any way use military force -- without even a report to Congress, much less consultation. The proposed legislation has loopholes big enough to allow major military operations by the president alone.
Among these loopholes we find that “limited acts of reprisal against terrorists or states that sponsor terrorism” are exempt from reference to Congress. But who identifies “terrorists”? Who defines “terrorism”? Who determines which are “states that sponsor terrorism”? Who defines “limited”? The president alone. Congress is consigned to the role of an uninformed, unconsulted bystander.
Under this exception, the president could, without even a nod to Congress, ignore historic rights of national sovereignty and commit acts of war against any country that he determines is a haven of suspected terrorists. He could, for example, declare Iran a state that sponsors terrorism and carpet-bomb its nuclear facilities. The language is sufficiently ambiguous to enable a willful president to start a major war without constitutional authority, exactly as occurred in Vietnam.
Another expansion of presidential war powers proposed by Baker and Christopher would allow “acts to prevent criminal activity abroad.” But who defines “criminal activity”? Who decides what “acts to prevent” such activity should be used? Again, the president alone decides.
Still another loophole is the exclusion of “covert activities” from approval by Congress. With recent revelations of CIA bombings in Pakistan and the scandals at Abu Ghraib and Guantanamo fresh in mind, it must be obvious that the country needs more oversight, not less.
The War Powers Act of 1973 is basically sound, and it remains an important measure to sustain the rule of law.
Paul Findley (R-Ill.) served in the House of Representatives from 1961 to 1983. Don Fraser (D-Minn.) served in the House from 1963 to 1979.