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Ambiguous constitutional intent and a poorly written law allow presidents to take military action without consulting with Congress.
Thursday, July 25, 2013
Nebulous orders are an invitation to disaster on the battlefield. Likewise, a nation whose leaders are at war with each other cannot give adequate priority to protecting its citizens from external threats.
Yet ambiguity has been an accepted if not acceptable part of decision-making on U.S. military engagements for generations.
That gives presidents freedom to be reckless, and members of Congress cover to do nothing and then criticize executive misjudgments.
“Stuck in the middle are the American people, particularly our soldiers in arms,” wrote former Secretary of State James Baker III in a 2011 Washington Post commentary co-authored with Lee Hamilton, former chairman of the House Committee on Foreign Affairs. “They would be best served if our leaders debated the substantive issues regarding the conflict in Libya — and those of Afghanistan and Iraq — rather than engaging in turf battles about who has ultimate authority concerning the nation’s war powers.”
That column was inspired by political wrangling over President Obama’s authorization of military action in Libya, the most recent in more than 100 instances in which a chief executive has ordered U.S. intervention without prior approval of Congress.
The need for a clearer decision-making process remains. Sen. Tim Kaine, D-Va., and John McCain, R-Ariz., renewed calls last week for updating the 1973 War Powers Resolution.
War-making has been a murky topic since this nation’s birth. The U.S. Constitution designates the president as commander in chief, but gives Congress the power to declare war. The War Powers Resolution, passed during the Vietnam conflict by Congress over the objections of President Nixon, did not resolve the conundrum. It declares that presidents must end a conflict within 90 days if Congress fails to authorize military action. But chief executives have maintained the legislation is unconstitutional, an opinion shared by many legal scholars.
Kaine and McCain do not begin the daunting task of a rewrite without resources. The Miller Center at the University of Virginia conducted a thorough study of the topic in 2007 under the leadership of former secretaries of state Baker and Warren Christopher, now deceased.
The group recommended that presidents be required to consult with a group of congressional leaders before committing to combat operations expected to last more than a week. Exemptions were carved out for covert operations and missions to protect Americans abroad. Congress would vote within 30 days.
If in place at the time, those rules would have obliged Obama to seek consent from Congress before committing support for NATO-led military operations in Libya, but no prior discussions would have been necessary before the mission that ended in Osama bin Laden’s death.
Congress did in fact authorize military force a week after the terrorist attack on Sept. 11, 2001, but even the scope of that vote is subject to dispute. Administration officials have argued that the congressional action might justify operations for another quarter century or more against individuals born after the authorization vote.
As Kaine noted in a floor speech last week, it’s unlikely members of Congress intended such an open-ended interpretation. It’s even less likely that the public viewed the action in those terms. Clarity is impossible years after a vote taken within a dubious legal framework. But clarity is attainable for the future, if Congress has the courage to assert its relevance in the most difficult decisions this nation’s leaders are called upon to make.
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