Tuesday, July 8, 2008

MIA: The War Powers Act

You know another ruse is underway in Washington DC when a "bipartisan committee" has convened. Such is the case of the newest blue ribbon group, with the usual suspects (in this case, ex-Secretary of State James Baker and Warren Christopher [who I actually mistook for being dead]), opining on the newest non-issue of the hour. The proposed victim this time is the 1973 War Powers Act.

Panel calls for new war powers legislation

By ANNE FLAHERTY, Associated Press Writer 2 hours, 55 minutes ago

WASHINGTON - The next time the president goes to war, Congress should be consulted and vote on whether it agrees, according to a bipartisan study group chaired by former secretaries of state James Baker III and Warren Christopher.

In a report released Tuesday, the panel says the current law governing the nation's war powers has failed to promote cooperation between the executive and legislative branches. It says the 1973 resolution should be repealed and replaced with new legislation that would require the president to inform Congress of any plans to engage in "significant armed conflict," or non-covert operations lasting longer than a week.

In turn, Congress would act within 30 days, either approving or disapproving the action.

Baker, who served as secretary of s`tate in the first Bush administration and co-chaired the 2006 Iraq Study Group, said the proposal isn't intended to resolve constitutional disputes between the White House and Congress on who should decide whether the nation fights.

"What we aim to do with this statute is to create a process that will encourage the two branches to cooperate and consult in a way that is both practical and true to the spirit of the Constitution," Baker said in a statement.

A new joint House and Senate committee would be established to review the president's justification for war. To do so, the committee would be granted access to highly classified information.

The panel has briefed the presidential campaigns of Barack Obama and John McCain, as well as congressional leadership.

Spokesman Tommy Vietor said Obama commends the panel "for advocating that the president consult Congress more closely on issues of critical national importance like the use of military force."

McCain did not provide comment.

Congress' involvement in approving combat operations became a central issue in the Iraq debate last year, when Democrats tried to force President Bush to end the war. While Congress had authorized combat in Iraq, Democrats said the resolution approved only the invasion and not a five-year counterinsurgency.

After taking control of Congress in January 2007, Democrats tried to cap force levels and set a timetable for withdrawals. While they lacked a veto-proof majority to put the restrictions into law, the White House argued that such legislation would have violated the Constitution by infringing upon the president's right as commander in chief to protect the nation. Democrats disagreed, contending there was ample precedence.

The one surefire way for Congress to have ended the war was to cut off money for combat operations — a step most Democrats weren't willing to take because they feared doing so would have hurt troops in harms' way, or at least be perceived by voters that way.

The plan identified by Baker and Christopher, who served as secretary of State under President Clinton, would not necessarily resolve such issues in the future. But it would create a consultative process between the White House and Congress that currently does not exist. Also, calling on Congress to respond would exert significant political pressure on a president if he ignored lawmakers' wishes.

The panel studied the issue for more than a year and consulted more than three dozen experts. Other members of the panel include former Democratic Rep. Lee Hamilton, who in 2006 led the Iraq Study Group with Baker; former Attorney General Edwin Meese III, and Strobe Talbott, former deputy secretary of state.

The Miller Center of Public Affairs at the University of Virginia sponsored the study.


There are a few fallacies from this article that need to be addressed. One, the reason why the War Powers Act is really "ineffective" has little to do with a lack of Congressional oversight. The War Powers Act already contains this, requiring the President to consult Congress when sending troops into harm's way within 48 hours and then, most odious of all to the imperialist hardcore of the DC establishment, necessitate authorization within 60 days (depending on the circumstances). If the President does not receive authorization, (up to this point) he will be compelled to de-mobilize. No President since 1973, Republican or Democrat, has ever recognized the legality or legitimacy of the WPA. In fact, they have purposely ignored it. Thus why it is "ineffective," which means its failure is a product not of the act itself, but the fact the Presidency has evolved into an imperial institution in which the officeholder feels the prerogative to unilaterally use force without any consideration of Congress or much of anyone else.

Naturally, reforming Presidential non-compliance of the WPA would mean prosecuting just about every President since 1973, including the ones that Mr. Baker and Christopher served. It should surprise no one that this is a highly unlikely outcome. To avoid such unpleasantness, they want to replace the 48 hour rule with a new, you guessed, committee (this time a joint Congressional committee), which will reduce the legislative branch to a consultative role, while our newest aspiring war-time great ones are busily bomb and invade small, I mean terrorist, countries like Madagascar or the island of Malta (surely, they will never be expecting us).

Two, we already have a "cure" for the issue of war and peace, and who is to decide whether or not this country is going to war, and it is one the author of the article entirely (and almost certainly purposely) neglected. Our Constitution. Here is Article 1, Section 8, Clause 11, asserting the role of Congress:

[Congress is] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

This was commonly understood in our country's history, until after World War Two (the last war in which Congress actually declared war). It was certainly the intents of the framers of our Constitution. Here is Alexander Hamilton's view on the issue (the same Hamilton who supported the use of soldiers to crush the Whiskey Rebellion and once advocating colonizing all of North America).

It will be readily allowed that the Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war: but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it, as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. That instrument has only provided affirmatively, that, "The Congress shall have power to declare War;" the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War.
Those are the kind of sentiments you will never see expressed at a Federalist Society or American Enterprise Institute convention. It is too bad that our own Congress refuses to carry out its Constitutional authority, if only the current leadership had a spine and the bravery to stand up to the Executive.

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