The conservative case for the War Powers Act.

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Dec. 4 2001 5:56 PM

Zen and the Art of Congressional Cowardice

The conservative case for the War Powers Act.

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.

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does not do so (or does not grant itself the sole permitted extension of up to 30 days), those armed forces must be withdrawn.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?

Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.