Inside Track: From Freedom Fries to War Powers
by Philip Giraldi
Representative Walter B. Jones of North Carolina, a conservative Republican who supported the Iraq War and co-sponsored the resolution that expunged French fries from the House cafeteria menu and renamed them “freedom fries”, might seem an unlikely foe of President George W. Bush. But then Jones saw the reality of the war he had helped unleash. A steady stream of dead and wounded soldiers from his district began to trickle back from the Iraqi battle front as the insurgency grew and the White House seemed at a loss to either explain or put an end to the worsening situation. Jones also became concerned about the increasingly bellicose rhetoric coming out of the White House regarding Iran, language that seemed to suggest that another and far worse war was about to begin. At that point, Jones decided to work with other like-minded congressional leaders to impede the president’s ability to go to war without any meaningful political process. The first place Congressman Jones looked to for guidance was the United States Constitution.
The Constitution sought to decentralize the ability to declare and fight a war because the Founders believed, rightly, that the propensity of kings and princes to engage in war and the lack of restraint on such activity had been the ruin of many European nations. The Founders wanted war to be a last resort, only entered into if there was a solid “collective judgment” that no alternatives remained. As a result, the Constitution is very clear on the division of war powers. Congress has the power to declare war, to raise and support armies, to provide for the militias and the Navy, and to make the rules for how the military forces would be used and regulated. The President only has the constitutional authority to serve as commander-in-chief of the Army, Navy and the state militias that might be called up in an emergency.
The Constitution, written in a world where the decision to go to war had a considerable gestation period due to slow communications and the necessity to mobilize before taking offensive action, did not envision a possible nuclear attack on the United States using ballistic missiles, a situation that might require an instant response by the government without convening Congress for a vote. Indeed, it is not difficult to envision a scenario in which Congress would cease to exist after a nuclear sneak attack. To give the president authority to deal with such a catastrophic situation, a new legislative guideline was needed. This came in the form of the War Powers Act of 1973.
The War Powers Act was a reasonable compromise for the time, but the flaws in it have become evident in the past ten years. Bill Clinton was able to initiate an air war against Serbia in 1999 without any authorization from Congress; George W. Bush has claimed extraordinary rights as commander-in-chief to undertake military action in response to perceived threats. The 1973 Act gives the president considerable wiggle room to initiate and sustain military action, allowing him or her to begin any number of military deployments without congressional authorization as long as war is not declared. There are no limitations on the type of action, nor is there any restriction on the type of provocation that might be required to justify the use of military force. The President can deploy troops in such a fashion for sixty days—with an additional thirty day extension if it is necessary to extract military forces. The Act also requires the President to “consult” with Congress before any introduction of troops, followed within 48 hours by a report justifying the action and estimating its scope and duration. If the operation is to continue, Congress must approve it within sixty days.
Walter Jones has introduced legislation that would change the rules for the White House and would, among other things, make it more difficult to start a new war. It is called House Joint Resolution 53, the Constitutional War Powers Resolution. The bill is intended to restore the constitutional principle that going to war should be a difficult undertaking requiring a “collective judgment” on the part of both the executive and legislative branches. Predictably, the bill has only limited support in Congress—in spite of repeated Democratic Party claims that it wishes to curtail the President’s ability to go to war. This is arguably because many of the Democrats themselves are ambivalent about war powers and wish to preserve the right of future Democratic presidents to take unilateral military action.
Jones’s Constitutional War Powers Resolution would permit the president to initiate short-term military action only to repel or retaliate for an attack on the United States or on U.S. forces overseas. The president would also be empowered to use military resources to protect and evacuate U.S. citizens from a war zone or a natural disaster, but federal funding would be automatically cut off if the president were to seek to use military forces for any other purpose. Furthermore, the forces would only be deployable for thirty days after the initiation of hostilities.
Prior to the initiation of such hostilities, the president would have to consult with senior executive branch officials and also the top Senate and House leaders from the two political parties. That is, the Speaker of the House, the president pro tem of the Senate, and the majority and minority leaders of both bodies. Within 48 hours, the White House must submit a written report detailing the justification, scope, duration and estimated cost of the operation, as well as an assessment of the impact on U.S. diplomacy and a detailed projection of possible post-hostility scenarios. Congress then would have to vote on a resolution of approval within thirty days. Members of Congress would also gain specific statutory rights in the U.S. District Court in Washington, DC allowing them to sue the executive branch to compel compliance with the resolution, a power they currently lack.
The bill would require the president to remove U.S. armed forces within thirty days unless Congress has declared war, specifically authorized their continued presence or extended the time period, or if Congress is unable to meet due to an armed attack against the United States. The previous War Powers act had allowed the president to maintain the troop presence for sixty days and to prolong that period by claiming “unavoidable military necessity.” If this bill becomes law, the president would no longer have that loophole.
Philip Giraldi, a former CIA officer, is the Francis Walsingham Fellow for the American Conservative Defense Alliance.