The New War Powers Commission suggests bold new "consultation."

The New War Powers Commission suggests bold new "consultation."

The New War Powers Commission suggests bold new "consultation."

The law, lawyers, and the court.
July 12 2008 7:28 AM

Chatter in the System

The New War Powers Commission suggests bold new "consultation."

James Baker and Warren Christopher. Click image to expand.
Former Secretaries of State James Baker and Warren Christopher

What can you do with a Congress that does nothing? A blue-ribbon commission headed by former Secretaries of State James Baker and Warren Christopher suggested last week that the best solution to the problem of an overreaching wartime executive and a supine wartime Congress is "more meaningful consultation between the president and Congress on matters of war." In a 72-page bipartisan proposal to overhaul the 1973 War Powers Act, they essentially demanded that Congress grow a spine. As this is a surgical, rather than legislative, proposition, it is unclear whether the proposed reforms can really be counted on to get the job done.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

In 1973, Congress passed the War Powers Act after Presidents Lyndon Johnson and Richard Nixon went to war in Vietnam without a congressional declaration. The law gave the president 90 days after introducing troops into hostilities before congressional approval was needed. In the intervening years, the law has had all the legal force of a doily. It has never been formally invoked, presidents of both parties have occasionally declared it unconstitutional, and Congress has refused to force the issue. Various White Houses (but most especially the current one) have filled that breach with an ever more expansive reading of Article II, Section 2 of the Constitution. The text provides that "[t]he president shall be Commander-in-Chief of the Army and Navy of the United States." Many in the executive read that clause to mean that Congress is a constitutional bathmat.

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Now, technically Congress is not a bathmat. Indeed the constitutional grant of war powers to Congress is most generous, including the power "to regulate Commerce with foreign Nations," "raise and support Armies," "provide for the common Defense," and even to, um, "declare War." But Baker and Christopher began their constitutional analysis from the premise that "the Constitution provides both the President and Congress with explicit grants of War Powers" and went on to divvy them up from there. And that was when the act of giving away the farm first began: Consultation between the branches became the solution, as opposed to executive deference to the Congress.

Now to be clear, in some ways the proposed changes are better than nothing. New fixes would require the president to consult with Congress before deploying troops into "significant armed conflict" (i.e., lasting more than a week) and require consultation in covert operations or emergency circumstances after three days. The commission recommends a new joint congressional committee, featuring leaders of both houses and a permanent bipartisan staff. But the commission mysteriously exempts vast classes of actions from the category of "significant armed conflict," including such ambiguous presidential undertakings as "acts to prevent criminal activity abroad," and "missions to protect or rescue American citizens or military or diplomatic personnel abroad."

Presumably, the executive branch will be given the authority to define these exceptions into huge gaping acts of "insignificant" armed conflict. The proposed reforms all but disregard the Framers' concern that Congress—not the president—be given the ultimate authority over matters of war and peace. As James Madison wrote to Thomas Jefferson, "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."

The Baker-Christopher report teems with optimism that Congress, given a "meaningful" opportunity to consult with the president, might suddenly opt to act as a check on him, despite the fact that it already had this authority under the original War Powers Act. In his new book, Law and the Long War: The Future of Justice in the Age of Terror, Benjamin Wittes of the Brookings Institution characterizes Congress' recent record on terror legislation as "desultory, reactive, unimaginative," and worse. That description is generous. Wittes argues forcefully for a more engaged, accountable Congress, and nobody would disagree that checks and balances are only as good as each branch's willingness to check and balance. The commission seems to believe that with just a little more cross talk, Congress might awaken from its slumber and involve itself in our wars.

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But as Slate's Timothy Noah reminded us this week, Congress is and has always been too deferential, too credulous, and too timid to check a strong president in wartime and only ever speaks out after the war has become unpopular. Congress will thus always offer up a tiny little authorization to use force and then stand by in a bewildered stupor as that authorization swallows up several countries, many years, and thousands of dead soldiers. Our war-powers problems lie not so much in the failure of checks and balances, but in the fact that Congress is invariably comfortable opposing wars only in hindsight. This might explain the fact that Congress' popularity ratings dipped into the single digits last week. It doesn't change the fact that you can't amend a statute that tried to get Congress to consult, with another statute that tries to get Congress to consult more. In a statement last week, even Warren Christopher conceded that "it comes down to questions of congressional will … to resist funding or to limit it. …. [T]here is nothing we can do by statute that will change that."

This leads to the second mistaken premise behind the War Powers Commission: Baker and Christopher's bipartisan belief that the core failure of the War Powers Act lies in its poorly drafted, ambiguous language. Consider last week's Senate vote to amend the Foreign Intelligence Surveillance Act—the 1978 wiretapping law that made one guilty of a felony if one "engages in electronic surveillance under color of law except as authorized by statute." That language is perfectly clear and unambiguous. Indeed, it's so clear and unambiguous that last week a federal judge had no trouble determining that President Bush had violated it.

And yet last week the Senate voted to clarify FISA again. So, now the same electronic surveillance that was illegal when the president did it six years ago will be really, really illegal. Except when it's not. The hope appears to be that this time, the president will abide by the law because it's clearly written. But the problem with FISA was never that it was poorly or ambiguously drafted. The problem was with an overreaching executive that disregards crystal-clear, and also ambiguous, laws in about equal measure. I am hardly holding up the War Powers Act as a model of perfect clarity. But it already had consultation and reporting provisions, and yet nobody saw fit to consult or report. So, let's stop blaming ambiguous torture, wiretapping, and war-declaring laws for our current situation. Let's call executive overreaching what it is.

There is a reason the Framers were so worried about granting the president the power to initiate wars—even teensy little unanticipated emergency wars—and granted that power to the people who would fight them instead. Abraham Lincoln would put it this way: "Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions." The Constitution assumed a congressional branch capable of pushing back against a king. Now the War Powers Commission has downgraded that to a congressional branch able to "consult meaningfully" with the king. The Framers would say that's a big step in the wrong direction.