Congress doesn't want war powers.

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July 9 2008 6:12 PM

Congress Doesn't Want War Powers

And anyway, it already has them.

James Baker with Warren Christopher. Click image to expand
James Baker with Warren Christopher

James Baker and Warren Christopher, two former secretaries of state, have set forth a new plan to streamline the role of Congress in declaring war. There's only one problem. Congress doesn't want to streamline its role in declaring war, because, for all its bluster (not to mention its constitutional responsibility), Congress doesn't want to be held politically accountable for the results. I first became aware of this phenomenon 21 summers ago while covering a House debate on the use of Navy convoys to escort 11 Kuwaiti oil tankers through the Persian Gulf. Iraq and Iran were at war, and although the United States didn't officially take sides, this military action reflected our government's quiet tilt toward Saddam Hussein's Iraq. (For more about this furtive and little-remembered near-alliance, which compelled President Reagan to soft-pedal Saddam's use of chemical weapons, click here.)

Anyway, on that August afternoon in 1987 the House was debating whether to invoke the War Powers Resolution, a 1973 law meant to require congressional approval of any executive action that introduced the armed forces into hostilities, or into a situation in which hostilities seemed pretty goddamned likely, as appeared to be the case here. (Happily, the Navy escort occurred without incident.) What amazed and shocked me, and moved me to write up the debate for the New Republic, was the unembarrassed manner in which members of Congress declared as their paramount interest the absence of any legislative fingerprints on whatever might result from allowing (or not allowing) the Navy convoys to enter an area of violent conflict. In fact, it was pretty much taken as a given that the War Powers Resolution would not be invoked, not because the president was not complying with it (no president ever has) but because doing so would require Congress to either approve or revoke Reagan's decision. Here is how I described the House debate 14 years later in this column (I can't seem to locate the original New Republic piece); I should point out that the first two speakers were members of Reagan's own party:

"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.

The most controversial aspect of the War Powers Resolution is that it "sunsets" military action that fails to win congressional approval. If Congress wants to declare war, it must do so within 30 days after troops are introduced into conflict. If Congress does nothing, the troops must be withdrawn within the following two months. The Baker-Christopher proposal would maintain the 30-day clock but would eliminate the sunset provision. After 30 days, Congress would vote on a resolution supporting the military action. If Congress voted yes, the military action would continue. If Congress voted no ... the military action would continue. But if a senator or representative wanted to introduce a resolution disapproving the military action, and if this resolution actually came to a vote, and if it passed the House and Senate, and if the president, after vetoing the resolution, saw his veto overridden (or, less probably, decided that Congress was probably right to end the thing after all) … then the armed conflict would end.

The obvious question to ask is why, given that Congress currently has no difficulty ignoring the sunset provision in the War Powers Resolution, it should feel compelled, under the new law, to go on record endorsing or opposing military action. Sometimes, sure, Congress may want to express an opinion. More often, it won't want to, or it will want to only in hedged language at odds with the Baker-Christopher proposal's intent. (The 2002 joint resolution authorizing the Iraq war is arguably one such document.) It's almost impossible to imagine circumstances in which Congress would proceed with a resolution of disapproval that would have the effect of ending a war abruptly. And anyway, even if you choose to pretend the War Powers Resolution was never passed, Congress already has the ability to end military actions through the power of the purse. No appropriations, no war.

The Baker-Christopher proposal, then, is an empty exercise in high-mindedness for its own sake. Congress has all the war-making power it needs, and considerably more than it wants. The latter problem can't be solved legislatively. Cowardice, opportunism, and indecision inhabit a realm beyond the reach of law, and you'd think that two experienced hands like Baker and Christopher would understand that better than most.

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