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Zen and the Art of Congressional CowardiceThe conservative case for the War Powers Act.

By Timothy NoahPosted Tuesday, Dec. 4, 2001, at 5:56 PM ET

Astonishing fact: The phrase "War Powers Act" has, according to the Nexis database, been written or uttered in U.S. print and broadcast news outlets only 223 times since Sept. 11. For comparison's sake, the word "Superfund," which alludes to a law that has not been in the news for several years, was written or uttered more than one thousand times during the same time period. Whenever you enter a word or phrase that's at all related to a current big news story, you're bound to get the error message, "This search has been interrupted because it will return more than 1,000 documents." Not getting that error message demonstrates that the word or phrase has nothing at all to do with whatever the media is obsessed with. Ergo, the War Powers Act has nothing to do with the ground war that the United States is fighting in Afghanistan.

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That's fairly amazing when you consider what the War Powers Act says. Most people think it merely "requires the president to consult with Congress before deploying troops abroad," to quote C-SPAN’s online congressional glossary. In fact, Section 5(b) of the act requires Congress to take a much more explicitly active role in waging war. Congress must declare war 60 days after U.S. armed forces are introduced into hostilities or "into situations where imminent involvement in hostilities is clearly indicated by the circumstances." If Congress does not do so (or does not grant itself the sole permitted extension of up to 30 days), those armed forces must be withdrawn. Hmm, let's see. U.S. planes started bombing Afghanistan on Oct. 7. This means that, by the most conservative reckoning, Congress must declare war on Afghanistan by Dec. 6. If it doesn't declare war (or at least vote a 30-day extension), U.S. troops must come home this Thursday, leaving Osama Bin Laden to roam free.

Is Congress getting ready to declare war? Well, no. So will the troops come home? No again! That's because Congress, three days after 9/11, passed a sweeping resolution authorizing the president to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 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.

The resolution stated explicitly that it was "intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution," thereby obviating the need for Congress to weigh in again 60 or 90 days hence. This gesture was met with wide approval, especially by the many parties (including the Bush administration) who consider the War Powers Act to be an unconstitutional spasm of post-Vietnam remorse. (The bill became law, over Richard Nixon's veto, in 1973.)

But Chatterbox doesn't think Congress was being magnanimous and bipartisan. He thinks it was being cowardly and unpatriotic. By avoiding a formal declaration of war, Congress evaded responsibility for what that war might bring. If the war were going badly, Congress would find some way to distance itself. Members of Congress would insist that this was the president's war, not theirs. Perhaps no one would believe them, but they would say it anyway.

Although the War Powers Act has long been viewed as a power grab by Congress, Congress has always been comically reluctant to wield that power. Like a Zen riddle, the 30-day clock has never been heard to ring because Congress has never wanted to create the impression that it supported or opposed any given military action. (Even during the Persian Gulf War, Congress passed a resolution favoring military action but never formally declared war.) Chatterbox remembers watching the House debate a resolution in 1987 to place American flags on 11 Kuwaiti tankers and to provide Navy convoys for those tankers through the Persian Gulf. (This was during the Iran-Iraq war.) He recalls being shocked at the straightforward manner in which members of Congress stated their reluctance to commit themselves to an opinion about this relatively mild show of force. "This resolution puts congressional fingerprints on our course of action," complained Rep. Toby Roth. "Does this put the fingerprints and the handprints of the Congress on that policy?" asked Rep. Donald Lukens. No, assured Rep. Pat Schroeder: It was "a teeny-weeny first step" that "doesn't commit the Congress in any way." Only then could the resolution pass.

No doubt most members of Congress would deny feeling such ambivalence this time out. After all, thousands of Americans have been attacked on U.S. soil. Judging by its actions, though, Congress still can't commit itself to whole-hearted support for overthrowing the Taliban. Why aren't conservatives screaming bloody murder?

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Timothy Noah is a senior writer at Slate.

COMMENTS

It's worth noting that most constitutional scholars regard the War Powers Act as being unconstitutional--it's dead in the water, as far as the courts are concerned, and any attempt by Congress to wield its powers under the act would probably wind-up in front of the Supreme Court. It overlaps and contradicts the rules of war-making as defined by the Constitution and interpreted by the courts over two centuries.

In other words, the fact that the War Powers Act requires a declaration of war is meaningless. Even if it might be considered constitutional, the Supreme Court would probably be unwilling to hear any case trying to force Congress to declare war (as they did in 1970, during the Vietnam "conflict", when they refused to hear a case the state of Massachusetts brought against the federal government, arguing that the draft was illegal because we were not officially in a state of war).

Barring an attack on the continental U.S. by a recognized foreign government, I think the chances of a declaration of war are slim to none.

--T.Cromwell

(To find or answer this post, click here.)

The answer to Tim Noah's question (why are conservatives not up in arms about the lack of a formal congressional declaration of war) is simple. It's the same reason why we haven't had a declared war since 1941. Whoever controls the presidency always argues they don't need Congress' permission to make war (i.e., they rely on the commander-in-chief clause of the Constitution). Thus, when Reagan and Bush were in the White House and the Democrats controlled at least one branch of Congress, conservatives argued that the President could make unilateral decisions in such places as Lebanon, Granada, and Panama, while liberals complained about the lack of congressional authorization. Then, when Clinton had the Presidency and Republicans controlled the Congress, liberals (at least in the Clinton Administration) argued for broad executive powers, and the GOP grumbled about the lack of Congressional approval. Now, we've come full circle.

Conservatives are not up in arms about the lack of congressional approval because, ideally, they don't want congressional approval. Having to get congressional approval means Bush doesn't get everything he wants. Both the authorization resolution itself (which was originally proposed to cover future terrorist attacks as well as 9/11) and the anti-terrorism legislation passed by Congress contained compromises from what the Bush administration originally sought. After those two events, the Administration has proceeded to do everything else by executive and military order, with no congressional approval (e.g., listening on lawyer-client communications, interviews of Arab males, indefinite detentions, military tribunals). If they conceded that Congress has a role with respect to the War Power, conservatives would likely have to settle for negotiated compromises on each of these issues (and they might not get any authorization at all).

In other words, conservatives have done what everyone always has done when their guy's in the executive branch--forget about the separation of powers and try and cut Congress out of the act. It isn't new and it shouldn't surprise Tim Noah.

--Dilan Esper

(To find or answer this post, click here.)

I think that Congress is neither weak nor unpatriotic. The simple fact is that the War Powers Act, by any standards, is unconstitutional as it negates important checks and balances. The President is Commander in Chief. However, it is Congress that pays the bills. So, the president could certainly send troops or ships or warplanes any place he wants, but Congress has to make sure the money is there to feed them and arm them...

Since Vietnam we have not been involved in a traditional war. In other words, we have not gone directly against another country. It is hard to declare war on a person, or an organization, and indeed, rather unnecessary. Congress notes the antiquated nature of the War Powers Act, and has found easy and appropriate ways around it. But again, they do this not out of cowardice, but simple common sense.

--Bryan Gray

(To find or answer this post, click here.)

(12/6)

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