War Powers: Critical Questions of Clarity
By J. R. Bullington, Editor

American presidential election years always produce numerous studies by think tanks and interest groups designed to chart a course for the new Administration and Congress that will take office the following January. With the current widespread perception that new directions in U.S. foreign policy are both needed and inevitable, this year has produced an especially bountiful harvest of such studies, several of which we have highlighted and reviewed in American Diplomacy. In contrast to the rancor of the campaign, these studies tend to be moderate, constructive, and bipartisan, and designed to maximize chances of producing results. Some of them may actually do so.

A particularly engaging study that recently came to my attention is the report of the National War Powers Commission, a project of the Miller Center of Public Affairs at the University of Virginia. Co-chaired by former Secretaries of State James Baker and Warren Christopher, backed by a high-profile bipartisan group of Congressional and executive branch veterans, and staffed by distinguished legal scholars, the Commission addressed the crucial issue of what powers the executive and legislative branches of government possess in making the decision to take the country to war. After more than 200 years of constitutional history, fierce debate, and conflicting precedents, the issue remains legally, politically, and historically unresolved.

For a thoughtful discussion of “Presidential War Powers in Historical-Legal Context,” see American Diplomacy Contributing Editor Francis Sempa’s article at: www.unc.edu/depts/diplomat/item/ 2008/1012/comm/ sempa_warpowers.html

The most recent effort to define by legislation the procedure to be followed in making the decision to go to war is the War Powers Resolution of 1973. This relic from the Vietnam War has been resisted by all subsequent presidents, and the Commission found there is “broad consensus” that “it is at least in part unconstitutional and in any event has not worked as intended.”

Rather than get bogged down in legal debate, the Commission decided that the most important practical objective is to assure that the president and Congress “consult meaningfully and deliberate before committing the nation to go to war. Yet, such consultation has not always occurred.” Moreover, “no clear mechanism or requirement exists today for the president and Congress to consult.”

To remedy this situation, the Commission proposes “The War Powers Consultation Act of 2009,” which:

• Provides that the president shall consult with Congress before deploying U.S. troops into “significant armed conflict” – i.e., combat operations lasting, or expected to last, more than a week.
• Defines the types of hostilities that would or would not be considered “significant armed conflicts.”
• Creates a new Joint Congressional Consultation Committee, which includes leaders of both Houses as well as the chair and ranking member of key committees.
• Establishes a permanent bipartisan staff with access to the national security and intelligence information necessary to conduct its work.
• Calls on Congress to vote up or down on significant armed conflicts within 30 days.

“The statute does not attempt to resolve the constitutional questions that have dominated the debate over the war powers, and does not prejudice the president or Congress their right or ability to assert their respective constitutional war powers,” said Secretary Baker. “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.”

The text of the Commission’s report is available at: http:// millercenter.org/ dev/ci/system/application/views/_ newwebsite/ policy/commissions/ warpowers/report.pdf

Perhaps this critical issue can never be fully “resolved” in a legal or constitutional sense, but surely it can be clarified, and the process for committing the nation to war can be specified in such a way as to enforce meaningful consultation between the president and the Congress. This can go a long way toward assuring that the wars we fight are necessary, and that if they must be fought they will have the broadest possible political support along with the national resolve necessary to win them. The proposed “War Powers Consultation Act of 2009” should be high on the priority list for the new Administration and Congress.