Thursday, July 10, 2008

Cosmetic Surgery for the War Powers Act?

The report of the National War Powers Commission, co-chaired by former Secretaries of State Baker and Christopher, has been released. The premise of the report is that America must "describe a constructive and practical way in which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in significant armed conflict."

The report further declares that "...the War Powers Resolution of 1973 does not provide a solution because it is at least in part unconstitutional and in any event has not worked as intended."

Baker and Christopher's solution is a "War Powers Consultation Act", requiring the President to consult with Congress before the country engages in "significant armed conflict", which is defined as combat operations lasting, or expected to last more than one week.

But how well would the proposed act limit the ability of a rogue Administration from waging war without Congressional oversight - from the well-known cases of Iraq and Afghanistan, to the arguably more successful (but nearly unheard of) Operation Enduring Freedom - Philippines that has resulted in 15 American deaths and is bound to elicit comparisons with the early days of U.S. "advisors" in Vietnam.

Certain activities, including the defense of U.S. embassies, are specifically excluded - however, the further exclusion of "covert operations" and "reprisals against terrorist groups" gives some fairly broad loopholes to those who might wish to engage in prolonged combat operations without Congressional scrutiny.

Worth reading in its entirety, and food for thought.


Charli Carpenter said...

Indeed - plus isn't there an exemption for "emergencies" - however the President defines them?

No question of whether the War Powers Act should be reconsidered; the question is what set of rules would constitute a genuine improvement. Thoughts?

hank_F_M said...


Cosmetic is the operational word.

What else would you expect from two former Secretaries of State who probably thought the law restictive.

Aside from being a monument to supposing that a mechanical device in the law can overcome a lack of political will in Congress, the WPA actually increases the President’s ability to make war. Which is the exact opposite of what the authors thought they were doing.

There was already a substantial amount of legislation on the President’s war powers. This WPA did not repeal or amend any thing. It just added.

Previously the President or Congress would have had to declare a National Emergency to call up reservists. WPA allows him to call up reservists without a National Emergency. Most notably by Bush I in 1990 who called up and deployed well over a 100,000 before asking before getting a War Authorization from Congress. SInce the War on terror is a "national emergency'declartion don't think the WPA applies to the the Phillipine operation you mentioned.

I assume this commission is intended to produce something that will die on the vine after everything dies down or change essentially nothing if passed.

But as it stands the Congress if 50%+1 of at least one house wants to go to the wire on the issue can stop the president’s war making ability even without the WPA. His hasn’t happened since 1975 and the President was smart enough not to commit forces. The WPA serves more to provide a process for the President and Congress. There is no need to give the President more authority, and since Congress is usually reluctant to use the authority it has giving them more is useless. We should just leave it alone.

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