On the other hand is the White House, which argues that history is on its side. The 1999 NATO-led bombing over Kosovo lasted 18 days longer than the resolution’s 60-day requirement before the Serbian regime relented.
Stuck in the middle are the American people, particularly our soldiers in arms. They would be best served if our leaders debated the substantive issues regarding the conflict in Libya — and those of Afghanistan and Iraq — rather than engaging in turf battles about who has ultimate authority concerning the nation’s war powers.
There is, unfortunately, no clear legal answer about which side is correct. Some argue for the presidency, saying that the Constitution assigns it the job of “Commander in Chief.” Others argue for Congress, saying that the Constitution gives it the “power to . . . declare war.” But the Supreme Court has been unwilling to resolve the matter, declining to take sides in what many consider a political dispute between the other branches of government.
We believe there is a better way than wasting time disputing who is responsible for initiating or continuing war.
Almost three years ago, we were members of the Miller Center’s bipartisan National War Powers Commission, which proposed a pragmatic framework for consultation between the president and Congress. Co-chaired by one of us and the late Warren Christopher, the commission could not resolve the legal question of which branch has the ultimate authority. Only the court system can do that. Instead, the commission strove to foster interaction and consultation, and reduce unnecessary political friction. The commission — which represented a broad spectrum of views, from Abner Mikva on the liberal end to Edwin Meese on the conservative end — made a unanimous recommendation to the president and Congress in 2008.
The commission’s proposed legislation would repeal and replace the War Powers Resolution. Passed over a presidential veto and in response to the Vietnam War, the 1973 resolution was designed to give Congress the ability to end a conflict and force the president to consult more actively with the legislative branch before engaging in military action. The resolution, a hasty compromise between competing House and Senate plans, stated that the president must terminate a conflict within 90 days if Congress has not authorized it. But no president has ever accepted the statute’s constitutionality, Congress has never enforced it and even the bill’s original sponsors were unhappy with the end product. In reality, the resolution has only further complicated the issue of war powers.
Our proposed War Powers Consultation Act offers clarity. It creates a consultation process, defines what constitutes “significant armed conflict” and identifies specific actions that both the president and Congress must take.
On the executive side, the president would be required to confer with a specific group of congressional leaders before committing to combat operations that last or are expected to last more than a week. Reasonable exemptions exist, including training exercises, covert operations or missions to protect and rescue Americans abroad. Likewise, if an emergency precedes engagement, or secrecy is required that precludes prior consultation, then consultation can follow within three days. Under this proposal, the strike on Osama bin Laden would plainly fall within the president’s prerogative, while an action such as our current engagement in Libya would require advance consultation and congressional action at the appropriate time.
On the legislative side, Congress would have to vote on a resolution of approval no later than 30 days after the president had consulted lawmakers. If Congress refused to vote yea or nay, it would do so in the face of a clear requirement to the contrary. Inaction would no longer be a realistic option.
Given the Constitution’s ambiguity, no solution is perfect. But Congress and the White House should view the War Powers Consultation Act as a way out of the impasse. It is what the American people want when their leaders confront the serious questions of war and peace.
James A. Baker III was secretary of state from 1989 to 1992. Lee H. Hamilton is a former Democratic representative from Indiana who chaired the House Committee on Foreign Affairs.