Debating the War Powers Act

It looks like another "bi-partisan" group is at it again:

http://www.cnn.com/2008/POLITICS/07/08/war.powers/

This legislation from 1973 has been regularly ignored by most Presidents since it was passed, Republican and Democrat alike.

Does it need to be re-looked?

In this age of warfare, is the term "declare war on..." obsolete?

Would any new legislation encompass "peace-keeping" deployments, as well?

I'm no expert, but isn't the only "power" the legislative branch has over the executive branch in regards to the military is the "power of the purse" and said "war declaration"?

All of the points made above may actually be valid, however, I agree that the War Powers act does need to be revised if not repealed altogether. In the first place, it is probanbly unconstitutional. But, in my opinion, it has been the source of much of the discontent between the Executive and the Legislative branch. Indeed constitutionally the only powers the Legislative branch holds over the Executive when it comes to war is the power to declare, and to fund war, but what a power. If Congress just used that power it wouldn't need a war powers act at all.

I'm not a moderator, nor do I play one on TV, but I suspect that this thread has the likelihood to devolve into much more to do with politics than the focus of the Small Wars Journal as stated here:

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Small Wars Journal facilitates and supports the exchange of information among practitioners, thought leaders, and students of Small Wars, in order to advance knowledge and capabilities in the field.

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Originally Posted by Abu Suleyman

All of the points made above may actually be valid, however, I agree that the War Powers act does need to be revised if not repealed altogether. In the first place, it is probanbly unconstitutional. .

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I think the notion of War Declaration maybe obsolete, considering that the likelihood of declaring war on another nation as a whole seems unlikely right now. The budget control aspect is the real power, however, we've seen Congress continue to approve the Iraq War budgets the Presidents seeks. Since it's already on-going, it will be virtually impossible not to fund. Probably more applicable before a proposed war starts. I'm still confused on whether a Bosnia-style conflict would be applicable here...not "war" for the U.S., but still takes funds to accomplish? What about a possible U.S. (UN) military intervention in Darfur? That wouldn't be war, necessarily, but would take funds, but not need a war declaration? What additional language to the Act could define this? I agree that it is outdated and does need refining.

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Originally Posted by wm

I'm not a moderator, nor do I play one on TV, but I suspect that this thread has the likelihood to devolve into much more to do with politics than the focus of the Small Wars Journal as stated here:

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Once again, I'm torn by the name of this AO..."politics in the rear". I certainly thought this would be relevant for us to discuss. The War Powers Act and/or changes to it would certainly have an effect on the military and how we are employed by the Commander-in-Chief. I think we, collectively, are mature enough to leave the Partisanship out of it. I'm certain this topic would be appropriate at ILE or the War College. I hope that I'm not wrong and it stays open for discussion.

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Originally Posted by jkm_101_fso

I think we, collectively, are mature enough to leave the Partisanship out of it. I'm certain this topic would be appropriate at ILE or the War College. I hope that I'm not wrong and it stays open for discussion.

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. . .(or "me too") as they say in Ankara. I just wanted to raise a flag of warning.

I suspect it will stay open...so long as folks behave themselves and refrain from sounding like "Meet the Press" or "Fox and Friends.":)

That said, I consider the subject germane from a historical standpoint because so many of our small wars have been conducted by executive order or fiat (something I believethe Small Wars Manual pointed out). The point at which a small war becomes a larger one (from a political and budget standpoint) is certainly worth discussing, and War Powers does speak to that to a degree.

Again, so long as no bandwagons or political campaign posters come out we should be fine. From my perspective at least.

I've got to agree with Steve on this - it's certainly a point of concern leaving off any partisan considerations.

In some ways, it's an excellent lead in to discussing definitions of "war". Does a war have to be state vs. state (the old, post-Westphalian assumption)? Can you have a "declared" war against a non-state actor (personally, I would say that you can)? If so, what is the status, under international conventions, of the members of that non-state actor?

Most of our thinking on these questions isn't really well developed - we've spent the last 4 centuries assuming that "war" refers to state vs. state despite evidence to the contrary. Politically, and by that I mean it in terms of political semantics, we need to really rethink our definitions and their implications. I don't think that tis is so much a case of party politics as it is a case of general political discourse.

The War Powers Act of 1973 is clearly an unconstitutional law that passed for the same reasons that the unconstitutional Tenure of Office Act passed - a mostly united Congress could override the veto of a highly unpopular and discredited president. Congress has not been eager to test violations of the law in Federal court because the end result is not in doubt. Any attempt to reform the act, as Baker and Christopher suggest, to give Congress a "legislative veto" over uses of force will also be unconstitutional.

Congressmen cannot - and should not be allowed to - escape the need to pay a political price in making decisions of war and peace. Of all the votes they cast, these are the ones where their reasoning should be out front and center for the American public to see.

What we have here is a casting around for some mechanism by which the legislative branch can exercise it's authority without taking responsibility instead of using the powers granted to them under Article I. What our elected representatives need isn't more political cover but more wisdom, more spine and far less careerism.

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on "Morning in America" with Bill Bennett recently. I called in and got through, asking Bill his opinion. Bill noted that Warren Christopher and James Baker are "burnt candles that nobody cares about" and that the WPA would continue to be a non-issue; primarily because it was poor legislation to begin with (paraphrasing).

Christopher and Baker and he's probably right on the WPA as well. It should be scrapped but almost certainly won't be for a half dozen reasons -- inertia being a big one...

The question of Presidential "power to make war" vs Congressional "power to declare war" - and pay for "war" - has come to the fore in many venues since the last post to this thread in 2008.

Recently, Curtis Bradley has joined the Lawfare Blog. Bradley has partnered in a number of projects with Lawfare's Jack Goldsmith (who headed up OLC during a portion of the GWB WH). Bradley has submitted two short posts (each about 2 screens) dealing with "War Powers":

Historical Practice in the War Powers Debate

Historical Practice and the “Intermediate” Position on War Powers

The first step is to read those two posts. They provide a general overview of the three views of "War Powers": a pro-Congress view; a pro-Executive view; and an “Intermediate” Position.

The next step is to go to the War Powers Resolution of 1973 and just read it to get its basic structure. Don't dwell on it too long - because it is not really definitive for any of the three positions (from Bradley's 1st article):

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Supporters of both the pro-Congress view and the pro-Executive view invoke the War Powers Resolution of 1973, but its implications for any sort of shared understanding are unclear.

On the one hand, it states in Section 2 that the President has the authority to use force only upon either “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

On the other hand, presidents have indicated at various times that they do not agree that this is a correct description of the Constitution.

Section 5 of the War Powers Resolution calls for termination of presidential uses of force after 60 days unless approved by Congress, which might suggest that Congress accepts the constitutionality of presidential uses of force of shorter duration.

On the other hand, it may simply suggest that Congress compromised on the remedy it mandated for illegal operations, especially if this section is read in conjunction with what is stated in Section 2.

Finally, Section 8 of the Resolution states that the authority to use force shall not be inferred from treaties.

On the other hand, presidents have subsequently relied on treaties as partial justification for the use of force, including in the Libya campaign.

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So, the War Powers Resolution is akin to "Fiddler on the Roof", where one argues back and forth from one hand to the other hand - until one concludes there is no other hand. :)

Having that background, next turn to the current OLC opinion on Libyan operations (OLCM 1 Apr 2011) - BLUF:

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This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President’s legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.

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Take this as a brief - not an impartial opinion (no specific criticism of the Obama admin on this point; GWB had John Yoo et al).

This is not a "pure" pro-President brief (e.g., such as John Yoo's efforts); and it certainly is not "pro-Congress". Bradley critiques it and the "Intermediate" postion as follows (2nd article):

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The intermediate position contends that, although the President may need congressional authorization to initiate “significant” or “real” wars, he need not obtain authorization for “lesser” or “limited” military operations.
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There are three major problems with the intermediate war powers argument. First, as discussed in my last post, we have no strong evidence that the instances in which presidents have initiated the use of force without congressional authorization, whether in “limited” operations or not, have reflected any shared understanding between Congress and the President over the distribution of war authority. Some operations, such as in Panama or Grenada, may reflect only an understanding of a presidential authority relating to self defense or the rescue or protection of U.S. citizens, an authority typically accepted by those advocating the pro-Congress view of war powers. Other operations, such as the one in Kosovo, were conducted in the face of substantial congressional resistance, or eventually triggered constitutional complaints in Congress, as in Somalia. In other instances, it is likely that the lack of congressional opposition was merely ad hoc and tactical and did not reflect any general constitutional concession.

Second, the line between “limited” and “real” wars is highly uncertain and thus subject to substantial manipulation by the President. The duration and scope of military campaigns are almost always unpredictable and have a tendency to expand, as is becoming evident once again in Libya — for example, with the recent announcements that the United States is going to begin using armed drones there, and that other countries are placing military advisers on the ground. Indeed, even some of the conflicts that advocates of the intermediate position concede to be “real” wars, such as in Vietnam and Afghanistan, have started as more limited military campaigns.

Finally, the clearest articulation of Congress’s view on the question of what constitutes a significant enough commitment of forces to require congressional authorization is contained in the War Powers Resolution of 1973, which was enacted in the wake of the Vietnam experience. That Resolution refers to all situations involving the “introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Operations like the ones in Kosovo and Libya clearly qualify under this standard.

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A more complete critique of the 1 Apr 2011 OLCM is found in Glennon, The Cost of “Empty Words”: A Comment on the Justice Department’s Libya Opinion (14 Apr 2011, Harv. NSJ) (19 pp. in pdf). It covers these main areas:

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I. Presidential War Power

II. Security Council Resolution 1973

III. The War Powers Resolution as Authorization

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You may or may not agree with Glennon's arguments, but it is a good framework (we always can make additions) to present "War Powers" arguments.

A separate, but related, issue is the force of UNSC Resolutions on member states - mandatory or optional; self-executing or requiring approval at the national level - if approval is required at the national level, what constitutional process is required ?

For that, see Declaring War and the Security Council, by Michael Ramsey (28 Mar 2011) (Opinio Juris is a good I Law blog - it is not amateur week) - which answers the above questions, applied to UNSC Res. 1970 & 1973, as optional and requiring approval at the national level. Like Glennon, it presents a framework for analysis and presentation.

So many "AUMF" situations are presenting themselves now that reviving this thread seemed a better way to create a "War Powers" reference that can be cited from individual threads on conflicts.

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IMO: We all know that legal debates (whether sophistry or not) do not affect one fact of "armed conflict" - people die (both combatants and civilians). To the individual, the size and "legal characterization" of the "armed conflict" matter naught - nor, whether a President, Congress or me says it is or is not a "war". All the Sailors and Marines added up here were casualties - in "conflicts" big or small (from 1775 to 2002).

Whether we agree or not with the political policies that drive the "conflict", we all are responsible for sending our friends (then young men) into wars and some of them die (becoming "forever young" because that is the only way we as humans can remember them).

Regards

Mike