Ex-Secretaries Suggest New War Powers Policy
Wednesday, July 9, 2008
The 1973 War Powers Resolution is ineffective, possibly unconstitutional and should be repealed, two former secretaries of state said yesterday in proposing new legislation to govern the war-making powers of the president and Congress.
"The rule of law is undermined and is damaged when the main statute in this vital policy area is regularly questioned or ignored," former secretary James A. Baker III said of the existing law. Baker, along with former secretary Warren Christopher, headed an independent, bipartisan commission that spent the last year examining the issue.
Christopher and Baker insisted at a news conference that they were focused on the future and not the past, including the decision to go to war in Iraq. But that conflict has focused new attention on what Sen. John W. Warner (R-Va.) yesterday called "the ever-present debate between a president and the Congress over their respective constitutional powers."
The Bush administration has claimed congressional approval for the Iraq war by virtue of an October 2002 resolution authorizing the use of force against Saddam Hussein -- passed overwhelmingly by Congress -- and regular approval of appropriations to fund the conflict since then.
War opponents have said Bush has surpassed that initial authorization in continuing the war beyond Hussein's overthrow. But they have failed in past attempts -- introduced by Democratic Sens. Barack Obama and Hillary Rodham Clinton, among others -- to repeal or alter the original authorization or to deny funding.
The commission's 68-page report points out that the 1973 resolution, enacted in the waning days of the Vietnam War, has never been formally invoked, despite numerous conflicts during its 35-year history, ranging from U.S. invasions of Grenada and Panama to military action in the Balkans and the 1991 Persian Gulf War. The report blames a badly written statute, vague consultation requirements, an executive branch that has honored its provisions only "in the breach" and a Congress that has failed to use even the limited powers it allows.
The report calls for the passage of a new War Powers Consultation Act early in the next Congress. It would require the president to consult with a new joint congressional committee before deploying troops to a "significant armed conflict" -- defined as lasting longer than one week -- and would mandate regular consultation thereafter. Response to a terrorist attack and covert actions would be exempted from its requirements.
The bill would also require a congressional vote approving military action within 30 days of its inception. If approval was not given, any lawmaker could introduce a "disapproval" resolution that would have to be voted on within five days. If it passed, the president would have to comply or veto the measure. If lawmakers could not override a presidential veto, Congress's remaining option would be to deny funding.
Commission staff members have briefed the White House and the presidential campaigns of Obama and Sen. John McCain. Baker said in an interview that he and Christopher would be willing to meet personally with the candidates if they desired.
The commission was launched last year in the midst of controversy over the Iraq war, at the urging of Warner and others. Its work was conducted under the auspices of the Miller Center of Public Affairs at the University of Virginia.
In introducing the report, Baker noted: "Our constitution gives the president the powers of the commander in chief. Congress has the power of the purse and also has the power to declare war. But history indicates," he said, that they have often disagreed about their respective roles, and "the Supreme Court has shied away" from ruling on the matter.
The commission's goal, Baker said, was to preserve the powers of both the executive and legislative branches and "accomplish meaningful consultation" between them "before a decision to go to war." The joint House and Senate committee it proposes would include the leaders of both parties, along with the chairmen and ranking minority members of appropriate standing committees. It would have its own staff, with clearance and access to the highest intelligence.
In deflecting questions about Iraq, Christopher said the commission had "tried very hard not to call balls and strikes on past history here." Baker noted in the interview that Congress had authorized the Iraq war with "overwhelming votes" but said that the problem with such authorizations was that after a war "has gone on for a while, members say, 'Well, we didn't mean that.' "
"It comes down to questions of congressional will . . . to resist funding or to limit it," Christopher said. "There is nothing we can do by statute that will change that."