Military

War Powers Legislation:  A Study In Misfeasance

 

CSC 1995

 

SUBJECT AREA Topical Issues

 

 

 

EXECUTIVE SUMMARY

 

Title: War Powers Legislation: A Study in Misfeasance

 

Author: Major Michael A. Wallace, United States Marine Corps

 

Thesis: War powers legislation pending before Congress perpetuates deficiencies of the

War Powers Resolution.

 

Background: The demise of the Soviet Union thrust us into dealing with a confused and

splintered world of transnational interests. By our inability to define our threat and

collectively agree on a national foreign policy, we have seemingly considered almost

everything to be important, warranting our involvement. And some of those

involvements, notably Somalia, have been very messy and costly, further fracturing

national unity. At heart is a question of our willingness to engage these global problems in

multilateral cooperation, or retrench and selectively and unilaterally engage them. George

Washington warned us about "entangling alliances". It is curious that even though the

United States achieved freedom from Britain as the result of cooperation with France, our

Founding Fathers did not clearly foresee the issue of defense through a system of alliances.

Today, we are facing unique challenges. In an attempt to prevent executive initiative in

foreign policy, Congress is contemplating legislation which distances us from the

"entangling alliance" of the United Nations, specifically, our military involvement with

peacekeeping operations. In the process, Congress is dangerously and unconstitutionally

affecting the war powers of the executive. Proposed legislation possesses many of the

attributes found deficient in the War Powers Resolution. Like their predecessors,

members of Congress today are attempting to fix the errors of the past while rooted in

emotional reaction to failure and mired by parochial, political machination. Ironically,

Congress possesses powers sufficient to check executive initiative without introducing this

legislation.

 

Recommendation: The War Powers Resolution should be repealed and pending war

powers legislation should not become law.

 

 

WAR POWERS LEGISLATION: A STUDY  MISFEASANCE

 

BACKGROUND

 

The War Powers Resolution of 1973 was a crude attempt by the 93rd Congress

 

to curtail executive initiative in foreign policy and control of the military in support of such

 

policy. Since its passage into law, foreign policy and the employment of U.S. armed

 

forces have become even more contentious issues, especially with the fall of the Soviet

 

Union and the reemergence of a multipolar world in which United States interests are not

 

clearly defined. The Resolution has been criticized since its inception. Now, the 104th

 

Congress is attempting to replace it with equally onerous legislation, again with the intent

 

to curtail executive initiative. This paper explores the relationship between the Resolution

 

and pending war powers legislation.

 

 

 

The War Powers Resolution - What It Says

 

 

The War Powers Resolution became Public Law 93-148 on November 7,1973,

 

over President Richard Nixon's veto. Its avowed purpose is given in Section 2(a):

 

...[to] insure that the collective judgement of both the Congress and

the President will apply to the introduction of the United States

Armed Forces into hostilities, or into situations where imminent

involvement in hostilities is clearly indicated by the circumstances,

and to the continued use of such forces in hostilities or in such

situations.1

 

The essence of the legislation is this:

 

Before American troops are introduced into hostilities or into

situations where imminent involvement in hostilities is clearly

indicated by the circumstances', the President is to consult with

Congress 'in every possible instance'. After troops are so introduced,

in the absence of declaration of war, the President is to submit a report

to Congress within forty-eight hours. Then, sixty days - or in special

circumstances ninety days - after that, the involvement of the troops is

to be terminated, unless Congress has taken affirmative action in the

meantime to approve it. Congress can also terminate the involvement

before sixty days have elapsed by passing a concurrent resolution

(which does not require the President's signature and is therefore not

subject to a veto). (Original emphasis) 2

 

To begin to understand what is wrong with the Resolution, and why it has been under

 

attack, the Constitution must be revisited.

 

Constitutional War Powers In Context

 

The United States Constitution was crafted by men who had a keen understanding

 

of ancient and modern governments alike. In the immediacy of the moment, they wrote it

 

with the weaknesses of the Articles of Confederation in mind. The central challenge was

 

to check the corruptible influences of men in government and provide a workable balance

 

of power among the three branches of government. These checks are referred to as the

 

separation of powers, adopted "... not to promote efficiency but to preclude the exercise

 

of arbitrary power".3

 

War powers were divided as one of these checks. Congress has the power to

 

declare war and raise and support the armed forces while the President is

 

Commander-in-Chief.4 In Federalist Number 69, attributed to Alexander Hamilton, the

 

President is compared with other Executives. Hamilton wrote:

 

The President is to be commander-in-chief of the army and navy of

the United States... it would amount to nothing more than the supreme

command and direction of the military and naval forces, as first General

and admiral of the Confederacy; while that of the British king extends to

the declaring of war and the raising and regulating of fleets and

armies, - all which, by the Constitution under consideration, would

appertain to the legislature. (Italics in original)5

 

The power to formally place the nation in a state of war from the beginning - a

 

"solemn war" - was "undoubtedly intended for Congress alone."6 James Madison's

 

distinction clearly implies another type of war. The nature of war as seen in l787 was an

 

important matter which helped to shape the intent of the separation of war powers.

 

Nature Of War

 

A remarkable piece of research, undertaken by Brevet-Lieutenant Colonel J. F.

 

Maurice, of the Royal Artillery Corps in the l 9th century, discloses quite clearly the trends

 

of hostilities between nations commenced without declaration of war during the period

 

1700 to 1870. He noted: "Circumstances have occurred in which 'declarations of war'

 

have been issued prior to hostilities; but during the 171 years here given (from 1700 to

 

1870 inclusive), less than ten instances of the kind have occurred.'7 Nothing  the

 

accellerated trend toward sudden aggression between nations, Maurice asked,

 

What is a declaration of war? A declaration of war.. read from

the steps of the Royal Exchange by the Sergeant-at-Arms, is in

form an explanation to the English people of the circumstances,

that have led to war, and of the necessary consequences. It is

not in form a warning to the threatened Power that war is about

to break upon it.8

 

This fits the distinction perfectly of defensive and offensive wars, with congressional

 

declarations of war - "solemn declarations" - being the latter. Such wars are few and far

 

between, as has been the case in our own history. Four of our five declared wars have

 

involved declarations recognizing the prior existence of war - the War of 1812, Mexican

 

War, Spanish-American War, and World Wars I and II.9 These trends which Maurice

 

noted have continued in our day.

 

The Founding Fathers were aware of the older practice of "solemn declarations" as

 

they studied Roman and Greek history quite extensively. They also had recent history -

 

according to Maurice,47 instances during the 100 years from 1700 to 1799 - in which

 

sudden aggression without "solemn declaration" of war was the norm. Knowing this, the

 

Founding Fathers made subtle changes in the draft Constitution.

 

The August 1787 draft Constitution of the Committee of Detail

would have given the legislative branch the power "to make war,"

but on the motion of James Madison and Eldridge Gerry this was

changed to give Congress only power "to declare war." The

records of the convention indicate that this was done to preserve

for the executive the power to repel sudden attacks and to avoid

the possible implication that Congress was expected to conduct

war, which was recognized as an exlusively executive function.10

(Original emphasis)

 

It is clear that the separation of war powers empowered the President to respond,

 

as commander-in-chief, without Congressional encumbrance, to foreign acts of war

 

against the United States national interest. Our history reveals that the Executive has had

 

wide discretion to define these threats and act upon them. Alexander Hamilton in

 

Federalist Number 23 wrote:

 

The authorities essential to the common defense are these:

to raise armies; to build up and equip fleets; to prescribe rules for

the government of both; to direct their operations; to provide for

their support. These powers ought to exist without limitation,

because it is impossible to foresee or define the extent and

variety of national exigencies, or the correspondent extent

 

 

and variety of the means which may be necessary to satisfy them.11

(Original emphasis)

 

Hamilton wrote the above justifying the formation, direction and support of

 

national military forces, explaining that such were in the interest of the "common defence

 

and general welfare" of all the states. The same logic is equally valid concerning the

 

unencumbered war powers of the executive. If the Founding Fathers recognized they

 

could not define the exigencies facing this country, how can it be that a body of less

 

capable men 186 years later could believe so and attempt to encumber the executive in

 

the process through the enactment of the War Powers Resolution?

 

Birth of the War Powers Resolution - Snapshot History

 

How did we arrive at the law? As grim the stakes involved and as noble the

 

Resolution may sound, don't believe for a minute that unchecked emotion and inflamed

 

political passions were not involved in its creation. A cynic may argue the Resolution

 

wasn't a constitutional issue - it was all about President Nixon and a vengeful Congress

 

absolving itself of collective sins and culpability for the Vietnam War. After all, Senator

 

Gaylord Nelson (D-WI) said during the debate on the Resolution: "I love the Constitution,

 

but I hate Nixon more."12  cynical view, however, overlooks the possibility that

 

well-intentioned men drafted, sponsored and supported a law which was constitutionally

 

flawed at its inception. Senator Tom Eagleton (D-MO), a co-sponsor of the draft War

 

Powers Act, stated: "The time has come for Congress to reassert its role within our

 

system. The public is not keenly aware that it is wrong to wage war without the full

 

consent of Congress and the people."13 This  is well-intentioned, but Senator Eagleton's

 

logic is faulty and self-serving. By reasserting a role, he acknowledges a role and a

 

method of influence which Congress already possessed and had willfully abandoned.

 

Simply, Congress abdicated its responsibilities, emeshing this nation in the Vietnam War

 

A look at key testimony for the Resolution is in order.

 

Critical Testimony

 

Senator Eagleton made the point that "[t]he framers' central premise on

 

war-making authority was clear: the decision to go to war, under our Constitution, is a

 

decision for Congress alone to make."14 He is wrong! The framers in Article I, Section 8,

 

said Congress has the power to declare war. That's different. As noted previously, the

 

Founding Fathers made a distinction between offensive and defensive war, the subtlety of

 

which proponents of this legislation ignored. In hearings on the Resolution before the

 

95th Congress in 1977, Senator Barry Goldwater (R-AZ), made the point that spokesmen

 

for congressional supremacy "assume the power 'to declare war' means the same thing as

 

the power 'to commence, control and direct the use of the Armed Forces in any and all

 

kinds of situations.' Again, this is not what the Constitution says."15 He reiterated the

 

distinction the framers made between defensive and offensive war and their intent not to

 

hamstring the executive in matters attendant to the national defense. Altogether, Senator

 

Goldwater presented nine compelling arguments against the Resolution, declaring it to be

 

unconstitutional.16

 

The strongest argument against the War Powers Resolution came from President

 

Nixon. His veto was based on grounds of unconstitutionality. He wrote to Congress:

 

 

The restrictions which this resolution would impose upon the

authority of the President are both unconstitutional and

dangerous to the best interests of our Nation.  will] undercut

the ability of the United States to act as an effective influence

for peace. For example, the provision automatically cutting off

certain authorities after 60 days unless they are extended by

Congress could work to prolong or intensify a crisis. Until the

Congress has suspended the deadline, there would be at least a

chance of United States withdrawal and an adversary would be

tempted therefore to postpone serious negotiations until the 60

days were up. Only after the Congress acted would there be a

strong incentive for an adversary to negotiate. In addition, the

very existence of a deadline could lead to an escalation of

hostilities in order to achieve certain objectives before the 60 days

expired.17 (Emphasis added)

 

Every President since 1973 has believed the Resolution to be unconstitutional. As

 

a result, there has been extreme reluctance by the executive to report in accordance with

 

the provision of imminent hostilities, because it triggers the 60 and 90 day time clauses. In

 

fact, of almost 40 such reports to Congress since 1973, only one cited Section 4(a)(1),

 

specifically stating that forces had been introduced into hostilities or imminent hostilities -

 

and that was the Mayaguez incident of 1975.18 Congress, in its turn, has never invoked

 

provisions in the Resolution to prevent or curtail any executive military action. Instead,

 

they have invoked the more traditional "power of the purse" to prevent or limit executive

 

action. A look at only two events since 1973 - the Gulf War and Somalia - gives an idea

 

of the ineffectiveness of this law.

 

The Gulf  War

 

President Bush took immediate action in response to Iraqi aggression against

 

Kuwait in 1990. He sent a letter to Congress telling them he was deploying U.S. military

 

forces, but Section 4(a)(1) was not invoked. President Bush was disingenuous from the

 

beginning. The Pentagon certainly believed hostilities were imminent; trigger-pullers were

 

deployed before necessary support personnel, and we were laying the case of imminent

 

threat to Saudi Arabia. Moreover, our troops received hostile fire pay in September, and

 

the President's own statements spoke to "the brink of war".19 What did Congress do?

 

Nothing. No attempt was made to trigger Resolution time clauses.

 

Significant additional forces were deployed to the Gulf in early November, 1990.

 

President Bush, on 8 November, announced that new deployments would provide an

 

offensive military option, however, only nine days before he said the military option was

 

"not imminent."20 What  did Congress do when the President announced an offensive

 

military option? According to John Lehman, "The next day, Bush met with the bipartisan

 

Congressional leaders and was berated about Congress's right to declare war. He whipped

 

out a copy of the Constitution and told them he understood that, but 'it also says I'm

 

commander-in-chief' But in the meeting he averted calling for a special session by

 

assuring them that he would consult Congress before using force - but he did not say that

 

he would seek their authorization."21 The President certainly believed he had no need of

 

Congressional authorization to act under United Nations resolutions. Furthermore,

 

Secretary of Defense Cheney, a former Congressman himself, opposed asking Congress

 

for a resolution of support because the continuing support of Congress would only be

 

based upon success of the coalition.22

 

A series of House and Senate resolutions sought to invoke greater Congressional

 

say and restraint over the President. One of the more disgraceful episodes of political

 

posturing was undertaken by Representative Gonzales (D-TX), who introduced House

 

Resolution 86 to impeach President Bush for "high crimes and misdemeanors" concerning

 

events leading up to Desert Shield/Desert Storm. Representative Ronald Dellums

 

(D-CA) and others filed a lawsuit to prevent use of offensive force without Congressional

 

consent. Rather than fully debating the issue and voting in Congress, he and others tried

 

to involve the judicial branch. This, however, didn't prevent them from voting funds for

 

Operation Desert Shield.23 This  type of duplicitous behavior was not new, for

 

...in 1967 an Associated Press survey reported that forty out of

forty-eight responding senators opposed President Johnson's policy

in Southeast Asia; but later that year only three of these senators

actually voted against a $12 billion supplemental appropriation for

the war.24

 

Nixon's Warning Materializes

 

There was a distinct aversion to a confrontation with the executive branch, but

 

there was also sufficient grumbling and dissention to cast doubt about American resolve.

 

Congress wanted the right to declare war, but shunned necessary debate. Indeed, "[u]ntil

 

Baker met Aziz (on 9 January 1991) there had been no formal debate in Congress over the

 

Gulf policy."25 Three days after Secretary of State Baker's meeting with Iraqi Foreign

 

Minister Aziz, Congress voted to support the President, and it was a decidedly partisan

 

vote.26 Contrary to what some people may believe, Public Law 102-1, signed 12 January

 

1991, was not a declaration of war. It simply authorized the use of U.S. armed forces in

 

support of U.N. Resolution 678. Keeping in mind the italicized warning in Nixon's veto, it

 

is conceivable to think that Congress's dithering provided Hussein an incentive not to

 

negotiate.

 

Somalia

 

In the case of Somalia, President Bush reported commitment of U.S. forces

 

"consistent with the War Powers Resolution" on 10 December 1992. This was at a time

 

when the term "humanitarian mission" was being touted, not peace enforcement or

 

peacekeeping. Section 4(a)(1) was not cited; because of this a time limit for our

 

involvement was not triggered. This was a refusal to face the reality of the situation, on

 

the part of the President and U.S. policymakers. Marines and soldiers on armed patrol

 

don't appear humanitarian at all. Furthermore, the environment of anarchy begged

 

hostilities. Significantly, at no point did Congress ever authorize the President to use U.S.

 

armed force pursuant to U.N Security Council Resolution 794. The Senate passed Joint

 

Resolution 45 authorizing such force, stating the resolution was intended to constitute

 

specific statutory authorization under Section 5 (b) of the War Powers Resolution. In May

 

1993, the House amended and passed Senate Joint Resoultion 45, which would have

 

authorized U.S. forces to remain for one year. However, the Senate never concurred with

 

the joint resolution to come out of conference because the measure never even reached

 

the floor!27

 

In September 1993, the House and Senate adopted amendments to respective bills

 

in their chambers expressing "the sense of Congress" that the President should seek and

 

receive congressional authorization for continued deployment of U.S. forces to Somalia.

 

(A "sense of Congress" is non-binding upon the executive.) On 3 October, 18 U.S.

 

servicemen were killed, our public was horrified, and Congress expressed its outrage. On

 

7 October 1993, President Clinton met with congressional leaders. He announced that

 

U.S. forces would be withdrawn by 31 March 1994. One week after President Clinton

 

met with these congressional leaders, the purse strings were pulled tight. An amendment

 

to the Defense Department Appropriations Act for FY l994 cut off funds for U.S. military

 

operations in Somalia after 31 March 1994. Just to make sure the House got its licks in,

 

they adopted House Continuing Resolution 170 using Section 5(c) of the War Powers

 

Resolution to "direct" the President to remove forces from Somalia by that date.

 

Ironically, sponsors stated it was a "non-binding measure". The Senate did not act on this

 

resolution.29  Congress continued to fund 31.7 percent of the U.N. costs in

 

Somalia until their pullout in March, 1995.

 

It was not reasoned debate that shaped our policy of involvement in Somalia, it

 

was emotion. National image was elevated over national security. Neither President Bush

 

nor President Clinton nor Congress followed the intent of the Resolution. The reaction to

 

the killing of our soldiers simply revealed the lack of critical thinking by both the executive

 

and legislative branches, before, during and after the event.

 

Appropriations Used To Shape Policy

 

Congress, in the case of Somalia, demonstrated once again that its true influence

 

over executive war powers is a function of its willingness to fund military action. This is

 

the power of the purse which Congress rediscovered late in the Vietnam War. The courts

 

have recognized that through a history of appropriations, Congress indicates its support

 

and involvement in activities of the executive, depite its protestations to the contrary.

 

Congress, by accepting foreign funding and underwriting of the Gulf War, diluted its

 

power of appropriations, thus they weakened their own voices.

 

 

Court Opinion

 

With regard to Congressman Dellums' lawsuit, the courts have not recognized

 

individual lawsuits by Congressmen or groups of Congressmen against the President,

 

implying that a minority sampling cannot represent Congress. The logic is that should a

 

majority of Congress oppose the President, and muster the vote, they would not need to

 

come to the Courts to prevent executive action. The Supreme Court has steadfastly

 

refused to intervene in the politics between the executive and legislative branches. By

 

going to the courts, the legislative branch has acknowledged it is reluctant to debate the

 

issues and vote - in essence - making itself accountable to the American public.

 

Consultation and Reporting

 

The cases of the Gulf War and Somalia reveal problems of Congressional

 

posturing and fear of accountability, whereas the executive has done what he believed

 

necessary despite legislation designed to hinder his initiative. Two specific complaints

 

against the Resolution deal with shortcomings in consultation and reporting.

 

The Constitution doesn't define consultation between the President and Congress,

 

yet every President has recognized the political prudence of at least keeping congressional

 

leaders informed. The Resolution demands consultation, but it does not prescribe any

 

method for it.30  Congress however, has interpreted consultation to mean total

 

involvement in the executive decision-making process. This desire for upfront

 

involvement does not square with the realities of Congressional behavior or temperment,

 

or of the pressure of world events.

 

John Lehman noted that when he was a National Security Council Staffer only

 

three times in a five year period (1969-1973) did Congressmen avail themselves of

 

proffered NSC briefings on any foreign policy issue.31 It can thus be surmised that

 

mistrust and disdain of the National Security Council, and the Joint Chiefs of Staff, were a

 

factor in the Resolution's passage, although testimony does not in fact reveal this. The

 

Resolution totally dismisses the advice provided by the Chairman, Joint Chiefs of Staff

 

and the NSC, the former's role institutionalized with the Goldwater-Nichols Defense

 

Reorganization Act of 1986. Dr. Robert Turner, a former principal national security

 

Legislative Assistant to a member of the Senate Committee on Foreign Relations, and a

 

vociferous opponent of the Resolution, observed that "[o]ne problem with Congress is

 

you can count on one hand the number of Congress-people that really have a strategic

 

understanding of the world and a world view."32 He noted that people in Congress would

 

like to treat events in one part of the world as a single event in isolation to what's

 

happening or likely to happen elsewhere. The tapestry of global foreign policy is broad;

 

events in one place affect events in another. The best judge is the executive. Said Turner:

 

In a sense, international affairs is like speed chess. Speed matters.

If you've got a crisis and you sit around debating it, it's going to

resolve itself, sometimes adverse to your interests. You cannot

operate with speed and dispatch if you make decisions by large

committee.33

 

Congress-Focus on Procedure Blurred By Politics

 

Perhaps the most illustrative example of the problems associated with consultation

 

and reporting are revealed in testimony before a House subcommittee concerning the use

 

of U.S. armed forces in the airlift operations to Zaire in May and June, 1978.

 

Representative Paul Findley (R-IL) was building a case to compel President Carter to

 

report in accordance with the Resolution, which he had not done. Findley had primary

 

responsibility for drafting reporting requirements in the Resolution. Interestingly, the

 

Chairman of the Committee on International Relations, Clement D. Zablocki (D-WI), and

 

Findley argued over the meaning of various sections of the law - and Zablocki was the

 

principal House sponsor of the Resolution. Both he and Findley had worked together on

 

the Resolution and in fact served on the same committee. Despite this, they now held

 

different interpretations of the law. Herbert J. Hansell, legal adviser for the Department of

 

State, also testifying, refuted Findley's assertion that consultation did not take place by

 

naming names of those in Congress who were consulted, which included Zablocki.

 

Findley was not consulted because he was not in a position which warranted consultation

 

by the executive branch.34 Hansell endured an inquisition conducted by a frustrated,

 

myopic word-merchant miffed at being left out of consultations. It is this pettiness that

 

highlights the failings of the Resolution and the tone of debate over it in Congress. They

 

have a focus on procedure, blurred by politics, not a focus upon substance and results.

 

Unconstitutional Legislative Veto Provision

 

A third complaint about the Resolution centers on its provision for the withdrawal

 

of troops upon passage of a concurrent resolution by Congress. This

 

....is a procedure designed to avoid possible presidential veto, and

has been used by Congress for years... .Every President since Franklin

Rooselvelt has argued that it is unconstitutional.35

The Supreme Court ruled in INS vs Chadda in June 1983 that the legislative veto of

executive action is unconstitutional.36

 

Re-thinking the Resolution

 

People who once supported the Resolution sooner or later recognized the law was

 

flawed. Senator Eagleton, who favored the draft Resolution, opposed the conference

 

report which became law because he believed it delegated congressional powers to the

 

President. Senator Eagleton may have been wrong with his facts, but at least he stood

 

firm on principle. Senator Frank Church (DAD) said:

 

I voted for the bill because it came in the aftermath of the Vietnam

experience and it seemed that Congress should at least endeavor to

prevent another war initiated and pursued on the basis of executive

decision. Still, I have had my doubts that it is possible to

accomplish such an objective by statute....37

 

 

Senator Church also recognized that Congress, through appropriations, influences

 

Presidential action. Senator Robert Dole (R-KS), without much elaboration, recently

 

stated that he erred in his support of the Resolution in 1973. After acknowledging that

 

his colleagues, Senators Jesse Helms (R-NC) and Strom Thurmond (R-SC) opposed the

 

law, Senator Dole said: "I now admit they were right and I was wrong."38  According to

 

Walter Lohman, an aide for Senator McCain (R-AZ), executive primacy in foreign affairs

 

needs strengthening.39 Congress hopes to rectify the errors of the Resolution through

 

enactment of the Peace Powers Act of l995; indeed, it was one of the first legislative

 

actions of the Republican-controlled l04th Congress.

 

Peace Powers Act of 1995

 

On 4 January 1995, Senator Dole introduced Senate Bill Number 5, the Peace

 

Powers Act of 1995. Significantly,

 

[i]t would repeal the most controversial provision of the 1973

War Powers Resolution, which calls for withdrawl of U.S. forces

from potentially hostile situations if their deployment is not

approved by Congress within 60 days. Less contentious

notification and reporting requirements would be retained

without change.40

 

Senator Dole commented in an interview with the Washington Times:

 

The effect of the bill would be this: We will untie the

president's hands in using American forces to defend American

interests....[b]ut we would restrict the use of American forces

and funds in United Nations peacekeeping.

We do not want American soldiers under U.N.

command...[a]nd the cost to America of U.N. peacekeeping

must be known before - not after, but before - it would be

approved by Congress.  [Dole criticized President Clinton for his]

apparent willingness to place the agenda of the United Nations

before the interests of the United States.41

 

 

Four days later, intent was clarified by Senator Warner (R-VA), co-sponsor of the Act.

 

"The idea is to restrict use of our military forces to situations where there is clear nexus

 

with national security interests."42

 

 

National Security Revitalization Act

 

The House Republicans' "Contract With America" also has legislation proposed -

 

House Resolution 7 - the National Security Revitalization Act - which gets in the knickers

 

of executive power in national security, even beyond involvement in U.N. peacekeeping

 

activities. It proposes the creation of a congressional national security commission, which

 

resurrects House Resolution 3405, introduced on 28 October 1993 by Representative Lee

 

H. Hamilton (D-IND). Implicit is the belief that Congress understands what it takes to

 

deal militarily with the world and the President doesn't - especially this President.

 

Paradoxically, Representative Hamilton expressed recently that House Resolution 7 "kills

 

the concept of collective security."43  same day his remarks were published, Secretary

 

of State Warren Christopher and Secretary of Defense William Perry weighed into the fray

 

and declared:

 

[the Act] would endanger national security.... It would leave the

President with an unacceptable option whenever an emergency

arose: act alone or do nothing....By mobilizing the support of

other nations and leveraging our resources through alliances and

institutions, we can achieve important objectives without asking

American soldiers to bear all the risks, or American taxpayers

to pay all the bills....In its present form, the bill unwisely and

unconstitutionally deprives the President of the flexibility he needs

to make the right choices for our nation's security."44

 

Three days later, on 16 February, the House passed House Resolution 7. As of this

 

writing, there is no companion legislation in the Senate.

 

Critique of the Legislation

 

It is very significant that key provisions of this legislation center on funding

 

appropriations for U.N. operations. This is at once a recognition of the traditional power

 

of the purse, and a recognition that this power was diluted in the Gulf War, and to an

 

extent in Somalia and other U.N. operations. The Senate is confronting the President with

 

a dilemma. On the one hand, they are offering the repeal of the Resolution - in effect

 

giving him back the unencumbered powers our Founding Fathers intended. On the other

 

hand, they again are encumbering him, specifically in multilateral affairs involving the

 

United Nations.

 

The legislation is flawed for several reasons. First, it contains consultation and

 

reporting requirements of the older Resolution which have proven ineffective. Its

 

provisions place time windows on consultation and reporting that defy the reality of

 

responding to crisis. It has a decidedly naive view of how crises develop and how the

 

executive must respond to them, as well as how ill-equipped Congress is to deal with

 

them. Secondly, it is emotionally based on an incorrect interpretation of facts - namely,

 

that U.S. forces in Somalia were under United Nations command. Thirdly, it ignores the

 

fact that U.N. actions are subject to U.S. veto in the Security Council. Fourthly, the

 

legislation is directed specifically against peacekeeping operations. There may always be

 

disagreement on what situations apply; recall, Somalia was originally just a "humanitarian"

 

operation. Simply change the definition or ignore the conditions, and the executive can

 

involve U.S. forces anyway. Fifthly, in opposition to Senator Warner's comment, there

 

have been few situations where a clear nexus with national security interests has existed at

 

all - hence disagreements over our foreign policy and use of the armed forces. And finally,

 

the House legislation in particular introduces new congressional bureaucracies designed to

 

emesh themselves into national security issues.

 

In a more colorful and spirited critique of the legislation, Dr. Robert Turner stated

 

that it is "xenophobic - sort of like giving the finger to our allies....There is a

 

micromanagement flavor that is as bad as most things the Democrats used to do." Eerily

 

reminiscent of Gaylord Nelson's comments about Nixon, he mockingly paraphrased

 

proponents of the Peace Powers Act of 1995: "We don't like or trust Bill Clinton so we re

 

gonna tie his hands and make sure he can't do anything.  Everytime we do that we get kids

 

killed and Dole should know that - Dole served in the military.45

 

WAR POWERS LEGISLATION: "...AN ILLEGITIMATE LINEAGE"46

 

I began research for this paper hoping to argue for the strengthening of the War

 

Powers Resolution as a means of preventing executive adventurism in places like Somalia,

 

Bosnia, and Haiti. In the course of research, however, I decidedly reversed opinion, and

 

came to view a strengthened Resolution, or any similarly restrictive measure upon

 

executive war powers, as ill-advised and dangerous given the nature of "war" today.

 

Implicit in the Resolution, the Peace Powers Act of 1995, and the National Security

 

Revitalization Act is the notion that the President has to be restrained. In reality,

 

Congress needs to be restrained, and moreover, compelled to act responsibly. A

 

committee of 535 may very well prevent committment to peripheral national security

 

interests simply through bureaucratic inertia. They may also precipitate committment by

 

lack of maturity, shallowness of global vision, or, allow it to happen through political

 

cowardice and indecision. Conversely, a single executive who panders to public opinion

 

and mood may do the very same things.

 

There is irony in all this. Whereas President Nixon was confronted in a weakened

 

political state with the War Powers Resolution by a Congress reacting to their culpability

 

for the Vietnam War, President Clinton, lacking much political credibility at all, faces new

 

war powers legislation, offered up by a Congress reacting to the failures of Somalia and

 

the morass of United Nations involvement. As John Lehman so aptly noted, "legislatures

 

have a consistent habit of dealing with the future by legislating against the errors of the

 

past."47

 

The War Powers Resolution should be repealed and proposed legislation should be

 

scrapped. Congress has proven, by its rhetoric and its actions, that politics does not stop

 

at the water's edge. Congress's capriciousness is a greater danger than executive

 

adventurism. In foreign affairs and national security issues, a single voice - that of the

 

executive- has primacy. Whether his words be wise or flighty are matters of some

 

importance. However, our constitutional procedures regarding war powers and balance of

 

power between the executive and legislative branches should not be changed based on

 

perceived defects in personalities of the moment. It is dangerous to hobble and restrict

 

executive flexibility through legislation which cannot by any stretch of the imagination

 

foresee all possible circumstances in which the executive would have to respond to meet

 

our national security interests.

 

 

NOTES

 

1 Public Law 93-148, 93rd Congress, H.J. Res. 542, November 7, 1973

 

2 Pat M. Holt, The War Powers Resolution. The Role of Congress in US. Armed

Intervention, (Washington, D.C.: American Enterprise for Public Policy Research, 1978),

3.

 

3 John Lehman, Making War: The 200-Year-Old Battle Between the President and

Congress Over How America Goes To War, (New York: Charles Scribners Sons,

Macmillian Publishing Company, 1992), 62.

 

4 U.S. Constitution, art. I, sec. 8 and art. II, sec. 2.

 

5 Alexander Hamilton, James Madison, and John Hay, The Federalist, ed Benjamin

Fletcher Wright, (Cambridge, Massachussets: The Belknap Press of Harvard University

Press, 1961), 446.

 

6 Lehman, op. cit., 60.

 

7 Brevet-Lieutenant Colonel J. F. Maurice, Royal Artillery, Hostilities Without

Declaration of War, (London: Her Majesty's Stationery Office, 1883), 4.

 

8 ibid., 9.

 

9 U.S. Congress. House. Report for Subcommittee On International Security And

Scientific Affairs of the Committee On International Relations, Background Information

On The Use Of US. Armed Forces In Foreign Countries, made by Foreign Affairs

Division, Congressional Research Service, Library of Congress, 1975 Revision, 94th

Cong., 1st sess., 28

 

10 Robert F. Turner, The War Powers Resolution: Its Implementation in Theory and

Practice, (Philadephia: Foreign Policy Research Institute, 1983), l7.

 

11 Hamilton, Madison and Hay, op. cit., 199-200.

 

12 Lehman, op. cit., 96.

 

13 Lehman, op. cit., 91.

 

14 U. S. Congress, Senate, Committee on Foreign Relations, A Review of the

Operations and Effectiveness of the War Powers Resolution, Hearings, 95th Cong., l st

sess., 13-15 July 1977, 6.

 

15 ibid., 21.

 

16 ibid., 23.

 

17 Holt, op. cit., 8.

 

18 Ellen C. Collier, War Powers Resolution. Presidential Compliance, (Washington,

D.C., Congressional Research Service Issue Brief IB8l050, 30 November 1994),

summary page.

 

19 Lehman, op. cit., 26.

 

20 Lehman, op. cit., 36.

 

21 Lehman, op. cit., 37.

 

22 Lehman, op. cit., 47.

 

23 Lehman, op. cit., 48.

 

24 Lehman, op. cit., 261.

 

25 Lehman, op. cit., 44.

 

26 Lehman, op. cit., 51. The tally was 250-182 in the House (164 Republicans and

86 Democrats against 179 Democrats and 3 Republicans), and in the Senate the tally was

52-47 (43 Republicans and 9 Democrats against 45 Democrats and 2 Republicans).

 

27 Collier, op. cit., 12.

 

28 ibid.

 

29 ibid.

 

30 Holt, op. cit., 35.

 

31 Turner, op. cit., 124.

 

32 Robert F. Turner, Professor, Naval War College, interview by author, 19 January

1995.

 

33 ibid.

 

34 U.S. Congress, House, Subcommittee on International Security and Scientific

Affairs of the Committee on International Relations, Congressional Oversight of War

Powers Compliance: Zaire Airlift, Hearings, 95th Cong., 2nd sess., 10 August l978,

16-18.

 

36 Turner interview, op. cit. Dr. Turner cited 462 U.S. 919, 103 S. Ct. 2764 (1983).

 

37 Holt, op. cit., 38-39.

 

38 Rick Maze, "Send Troops, But Sans U.N.", Navy Times, 23 January 1995, 30.

 

39 Walter Lohman, aide to U.S. Senator McCain, telephone interview by author,

December 15, 1994.

 

40 Helen Dewar, "Dole Seeks Curbs on Use of Troops for U.N. Efforts",

Washington Post, 9 January 1995, Sec. A7.

 

41 Bill Gertz, "GOP Targets Troop Deployment Under U.N.", Washington Times, 5

January 1995, Sec. A10.

 

42 Dewar, op. cit.

 

43 Representative Lee H. Hamilton, "G.O.P. Bill Endangers U.S. Peacekeeping", New

York Times, letter to the editor, 13 February l995, Sec. A-l8.

 

44 Warren Christopher and William J. Perry, "Foreign Policy, Hamstrung", New York

Times, 13 February 1995, Sec. A-19.

 

45 Turner interview, op. cit.

 

46 op. cit.

 

47 Lehman, op. cit., 67.

 

BIBLIOGRAPHY

 

 

Christopher, Warren and William J. Perry "Foreign Policy, Hamstrung" New York Times,

13 February 1995, Sec. A-19.

 

Collier, Ellen C. War Powers Resolution: Presidential Compliance. Washington, D.C.:

Congressional Research Service Issue Brief IB8l050, 30 November 1994.

 

Dewar, Helen "Dole Seeks Curbs on Use of Troops for U.N. Efforts." Washington

Post, 9 January l995, Sec. A7.

 

Gertz, Bill "GOP Targets Troop Deployment Under U.N." Washington Times, 5 January

1995, Sec. Al0.

 

Hamilton, Alexander, James Madison and John Hay The Federalist. Cambridge,

Massachusetts: The Belknap Press of Harvard University Press, 1961.

 

Representative Hamilton, Lee H. "G.O.P. Bill Endangers U.N. Peacekeeping." New York

Times, letter to the editor, 13 February 1995, Sec. A-18.

 

Holt, Pat M. The War Powers Resolution: The Role of Congress in U.S. Armed

Intervention. Washington, D.C.: America Enterprise for Public Policy Research,

1978.

 

Lehman, John Making War: The 200-Year-Old Battle Between the President and

Congress Over How America Goes To War. New York: Charles Scribner Sons,

Macmillian Publishing Company, 1992.

 

Lohman, Walter Aide to U.S. Senator McCain. Telephone interview by author, 15

December 1994.

 

Maurice, Brevet-Lieutenant Colonel J. F., Royal Artillery Hostilities Without Declaration

of War. London: Her Majesty's Stationery Office, 1883

 

Maze, Rick "Send Troops, But Sans U.N." Navy Times, 23 January 1995, 30.

 

Turner, Robert F. The War Powers Resolution: Its Implementation in Theory and

Practice. Philadelphia: Foreign Policy Research Institute, 1983

 

Turner, Robert F. Professor at Naval War College. Interview by author, 19 January

1995.

 

U.S. Congress. Senate. Committee On Foreign Relations. A Review of the Operations

and Effectiveness of the War Powers Resolution. Hearings, 95th Cong., 1st sess.,

13-15 July 1977

 

U.S. Congress. House. Subcommittee On International Security And Scientific Affairs of

the Committee On International Relations. Congressional Oversight of War

Powers Compliance. Zaire Airlift. Hearings, 95th Cong., 2nd sess., 10 August

1978

 

U.S. Congress. House. Subcommittee On National Security Policy And Scientific

Developments of the Committee On Foreign Affairs. War Powers Legislation.

Hearings, 92nd Cong., 1st sess., 1-2 June, 1971

 

U.S. Congress. House. Public Law 93-148, 93rd Congress, H.J. Res. 542, 7 November 1973

 

U S. Congress House. Subcommittee On International Security And Scientific Affairs of the

Committee On International Relations. Background Information On The Use Of US.

Armed Forces In Foreign Countries, Report made by Foreign Affairs Division,

Congressional Research Service, Library of Congress, 94th Cong., 1st sess., 1975

Revision

 

U.S. Congress. Senate. "The Peace Powers Act of 1995" 104th Cong., 1st sess., 1995.

S.5

 

U.S. Constitution. Art. I, sec. 8 and art. II, sec. 2.