Opening the Pandora’s Box – Presidential Military Power, Part 2
The War Powers Resolution of 1973 was enacted to reclaim Congressional war-making authority under Article I of the Constitution. Presidents have contested its constitutionality, but typically try to comply with the letter of the law, especially in true national crises. The Soleimani killing highlights the two main flaws in the law – the ability of Presidents to ignore it at their convenience and its failure to encompass modern forms of warfare. Any authentic foreign policy of realism and restraint must begin with consideration of the reforms necessary to remedy these flaws.
Together with other statutes, the resolution set up a process of consultation, reporting and approval designed to insure congressional input into the decision to commit the nation to military action. First, a separate statute requires notice and consultation with congressional leaders (colloquially known as the “Gang of Eight”) on classified intelligence matters, which would practically give those leaders notice of any threats that might require a military response. The War Powers Resolution then requires the president to report to Congress within 48 hours any introduction of American military forces into hostilities, the imminent threat thereof or into the territory of another nation while equipped for combat. The action must be terminated if Congress has not declared war or adopted an authorization for use military force (AUMF) by sixty days after the report was due, which can be extended for 30 days only if necessary to safely withdraw troops from the combat area. Otherwise, there are no exceptions except where an attack makes it impossible to convene Congress.
The process is relatively simple, but presidents have still found ways to game the system to reduce or avoid any serious oversight. As the Soleimani action shows, they can avoid consultation entirely in cases of short-term attacks. Even when an AUFM is granted, it has not historically been limited in duration. Presidents Bush, Obama & Trump have also shown how the text of an authorization can be stretched to justify interventions far beyond its original intent.
The AUFM granted after the September 11, 2001 attack is the most notorious example. It authorizes the use of force against all “nations, organizations, or persons … [the president]…. determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”. This created the endless and amorphous “War on Terror”, which has been used to justify both human combat and drone attacks against terrorists only loosely affiliated, if at all, with Al Qaeda. According to the Congressional Research Service, it was used by the Bush and Obama Administrations to justify not only the war in Afghanistan, but also military interventions in Djibouti, Eritrea, Ethiopia, Georgia, Iraq, Kenya, Libya, Philippines, Somalia, Syria and Yemen. President Trump uses the same excuse to continue these operations. This is exactly the kind of unsupervised and endless war that the War Powers Resolution was intended to prevent.
In the end, the main weakness in the Resolution is the absence of any effective congressional enforcement mechanism. Congress has the right to adopt a concurrent resolution to stop presidential non- compliance, repeal a previously granted AUFM or simply refuse to appropriate money to fund noncompliance, but never had the will to exercise those rights. Republican congresses never seriously challenged Clinton and Obama abuses just as Democratic congresses failed to check the excesses of Bush. The courts are no help since individual members of Congress have no private right to sue to force a President to seek an AUFM (See https://en.wikipedia.org/wiki/Campbell_v._Clinton). The resolution can succeed only if Congress unites to defend its war-fighting prerogative.
There is a little hope. In the wake of the Soleimani killing, both the Democratic House and Republican Senate have passed bills to prohibit further military strikes against Iran without congressional approval. The two versions must be reconciled in a conference committee and, even if passed, will certainly be vetoed by President Trump. Will this Congress be able to muster the same courage of the Congress that overrode Nixon’s veto of the original War Powers Resolution? Unfortunately, this seems highly unlikely in the current atmosphere of hyper-partisanship.
Thus, incidents like the Soleimani assassination are likely to continue or even worsen until congressional war powers are significantly strengthened. The next post will propose some specific changes to the law to achieve this goal.