Fix the War Powers Act, please

Ever since the onset of the Libyan civil war earlier this year, most debate has centered on questions involving the morality and/or national interest of American intervention.   Over the past two weeks, however, the legality, rather than the morality or sensibility, of  intervention has come under scrutiny.  Dissension within Congress about the legality of the operation has even potentially served to embolden Libyan leader Muammar Qadaffi in his efforts to cling to power.

The major fault line of the dispute is not about party lines or competing foreign policy visions, but rather the institutional balance-of-power between Congress and the Presidency as defined by the War Powers Act.  Over 260 years after Montesquieu’s Spirit of the Laws  articulated and popularized the notion of divided government (providing the subsequent inspiration and framework for much of the U.S. Constitution), no single piece of modern legislation provokes more controversy concerning the extent of legislative versus executive branch authority than the War Powers Act.

Disgruntled over the perceived lack of legislative branch input over the conduct of the Vietnam conflict, Congress passed the WPA in 1973, overriding President Nixon’s veto.  The WPA states, among other stipulations, that without explicit Congressional support within sixty days of the commencement of a military operation, the President must begin withdrawal of combat forces.

After sixty days of US involvement in Libya, many in Congress have argued then, that it is the President’s obligation to seek explicit congressional authorization for the operation.  The Obama administration, in response, has argued that because U.S. forces are only playing a logistical and intelligence support role that the administration is, therefore, not bound by the terms of the WPA.  So, which side is correct?

In terms of Libya, the administration has stated that the War Power Acts in applicable because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”  This seems in line with the original intent of the legislators drafting the law, whose major motivation was to prevent another large-scale, ongoing commitment of troops (or “War” as the name of the Act denotes) as occurred in Southeast Asia.  In this sense, the administration is correct in questioning is applicability to the limited American role in Libya.

Nevertheless, the administration’s critics have understandably argued that the implicit intention of the act is to prevent any long-term, open-ended commitment of the U.S. military without Congressional oversight.   Furthermore, the U.S. military is clearly involved in a “hostile” theater-of-operations, even if U.S. lives are largely out of harm’s way.

The ambiguity of the wording of the WPA itself is largely to blame for the current disagreement. The WPA, which was intended to clarify the Constitutional roles of a legislative branch vested with the power to “declare war” and the role of the President vested with the power of “Commander in Chief,” is itself unclear over when and how its powers apply.  A Congressional Research Services report from 2004 recognized a myriad of ambiguities related to the interpretation and execution of the WPA.

The most significant ambiguity of the law involves the statement that it applies to instances involving “the introduction of United States Armed Forces into hostilities.”  Without a clear legal definition of the term “hostilities,” WPA’s applicability to a given operation becomes one that is in the eye-of-the-beholder.

The War Powers Act is, in principle, a sensible compromise between what was arguably the founding fathers’ intent for a dominant legislative role in initiating military conflicts, and the practical need for expediency in executive foreign policy decision-making.   By allowing the President a free hand in the short-term, and Congressional oversight over military action in the longer term, the War Powers Act reasonably seeks to address the dual goals of reigning in potential executive military adventurism while avoiding handcuffing the President during times of crisis.

Whatever the outcome of the current dispute between the President and members of Congress, legislators should revisit the War Powers Act in the coming years and introduce an improved, clarified version as an amendment to the U.S. Constitution.  The importance of resolving difficult constitutional questions, like the process for deploying the armed forces, is why the founding fathers, recognizing the incompleteness of their work, included a process for amending the Constitution.  Surely such an amendment would be more central to the functioning of the republic than the last amendment that was ratified.

An amendment with more specific provisions than the current law would also provide Congress judicial backing in disputes with the executive, while providing the executive branch clearer guidelines concerning the need for consultation.

Most importantly, such an amendment would be extremely likely to be passed in Congress (certainly) and the requisite state legislatures (very likely).  Almost everyone, in principle, agrees with the need for cooperation, check and balances, and situational good sense in the deployment of U.S. personnel.  Fixing the War Powers Act and enshrining it as the law-of-the-land would receive widespread support and go a long way to resolving an issue will otherwise continue to complicate and weaken U.S. foreign policy in the future.

Posted on June 16, 2011, in Uncategorized. Bookmark the permalink. 2 Comments.

  1. Here’s a question; Can the administration use GWOT framework to unilaterily continue operations in Libya? We’ve been doing it in Pakistan, Yemen, the Phillipines, and Somalia since 2002. We are not openly enagaged in these countries but it seems that way some days.

    In terms of my understanding the WPA, CIA operations and military deployments must be disclosed to Congress. DIA or JSOC missions, however, are within the realm of the Oval office exclusively.

    By the way, here is an indignant conservative perspective on the matter;

  2. Thanks for the link. My understanding is that Congress can defund specific programs as they like. As we saw this week in regards to Libya, though, they usually don’t hang the President out to dry, even when members disagree with the policy.

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