In its April 20 editorial "No Way to Fight Terrorism," The Post criticized the antiterrorist legislation recently introduced by Sen. Jeremiah Denton and me. The editorial concluded that "The constitutional framework in which the United States faces terrorism and other forms of military crisis isn't broken. There is no valid call to fix it."
Leaving aside The Post's faulty logic -- bills don't "fix" the Constitution and, if the Constitution didn't need amplification on this issue, there would have been no need for the War Powers Resolution of 1973 in the first place -- I would take issue with the paper's position on three other counts.
First, it is just not clear that our mechanism to deal with terrorism "isn't broken" or, at least, isn't showing signs of stress fatigue. Because of extraordinary security precautions, the fact that only a few members of Congress were involved (which drew some criticism) and a little good luck, the substance of the president's consultations with Congress didn't leak -- until just barely after U.S. aircraft made a safe exit from Libyan airspace. And, in the two hours before the strike, there was a great deal of press speculation -- some of it accurate -- about what the consultations entailed. The point is that it is almost impossible to guarantee no leaks, and even when all the participants are perfectly close-mouthed, the fact of consultations in themselves can be dangerously revealing.
Second, ours is not the only attempted "fix" on the system -- others want to see it changed, but in the opposite direction. For example, Sen. Robterpart, has suggested the establishment of a larger body of senators and representatives to conduct these consultations with the president; others want even more formalized and extensive consultations. We spent a great deal of time last week, even some of our time with the president, debating whether there were enough consultations. Part of the aim of our bill is to set the limits now, before dangerous restrictions on the president's power are proposed and enacted.
Finally, even if the system "isn't broken" just yet, it may well need some timely preventive maintenance. I am reminded of the commercial: "You can pay me now, or pay me later." When we enacted the War Powers Resolution in 1973, we didn't foresee that terrorism would be a major international threat a decade later. Who knows what new threats the march of technology and the ascendancy of more lunatics like Muammar Qaddafi will bring to our future? I don't want to see the hands of the president in 1986 or 1988 or 1992 tied by rules we established in 1973, when the world was very different. I would rather pay a bit now, by forgoing one consultation, than pay later in the blood of dead or wounded American servicemen, victims of leaks or media speculation or our suspicion of our own president's motives.
I would also add one final and very important footnote. Nothing in what Sen. Denton and I have done should be taken as opposition to the concept of consultations. I was an original cosponsor of the War Powers Resolution mandating consultations in the situation we then confronted. Consultations still make sense in almost all situations today.
In introducing this bill on the floor last week, I said: "Let me also stress here that, in eliminating the legal requirement for consultations, I am not suggesting there should be no consultations. On the contrary, such consultations are very desirable and helpful, to both the president and Congress, whenever they are feasible and can be conducted in a manner consistent with the president's overriding need to avoid jeopardizing the safety of our armed forces."
Nevertheless, I also recognize that there may be occasions when time pressures will be so great, when antiterrorist operations will be so sensitive and dangerous, that it would be impossible or imprudent to reveal them in advance, even to Congress or through the very act of conducting consultations. Such occasions may never happen. But I can't guarantee that, and no one else can either. And I, for one, do not want to find out the hard way that such an occasion has arisen -- by seeing an American life lost or endangered.
No one holds more respect and affection for the institution of Congress than I do. No one is more determined to protect its role and prerogatives than I am. But I am also mindful that the president is commander in chief. The toughest decisions are in his hands. The responsibility for the lives and safety of our armed forces is on his head. In a real terrorist showdown -- and perhaps we have not even seen that yet -- I say only: Let him do his job, as the Constitution prescribes and as the situation demands.