It's the most profound of government decisions—when to launch war or hostilities—but the way American presidents and the Congress make such life-and-death decisions is downright dysfunctional. A high-profile bipartisan panel is acknowledging that failure and proposing to restore some order to the process of decision making—though without attempting to answer the sticky constitutional questions that loom over it.
The commission report, made public yesterday, avoids any retrospective critiques. However, President Bush's expansive assertion of executive power after 9/11 and during the Iraq war has put the war powers conundrum back on the table. So, too, has Congress's continuing unwillingness—some say failure—to fully press its supposedly central constitutional role in war decision-making.
The National War Powers Commission, a nongovernmental panel cochaired by former Secretaries of State James Baker and Warren Christopher, calls on the next president and Congress to back a new war powers act that would require a commander in chief to consult lawmakers before instigating a conflict expected to last longer than a week—or within three days in case of an emergency. Congress would then have to vote on approving the commitment of forces within 30 days.
If, subsequently, Congress instead voted to disapprove an action but could not override a presidential veto, it could move to block appropriating money to fund a war.
The report represents one of the more practical attempts to deal with the accumulation of presidential power—at Congress's expense—that started with the Cold War and the nuclear age. It actively shuns the deal-breaking big questions that would tip power in either direction on Pennsylvania Avenue: "We do not resolve the ambiguity of the Constitution," says former Democratic Rep. Lee Hamilton, a commission member. Adds Baker, "What we have designed here is a practical solution to a debate that is not going to be resolved unless the Supreme Court of the United States decides to resolve it or unless we have a constitutional amendment."
The current system is marked by confusion—and de facto disregard for the law. The War Powers Resolution of 1973 was written in the bitter aftermath of escalation and deception by administrations of both parties during the Vietnam War. But its provisions are essentially ignored. No president has ever formally complied with its requirement to report on a conflict in a way that would trigger its time limits on military action. "There was always a feeling that it was unconstitutional," said Edwin Meese, an attorney general in the Reagan years and a commission member.
Yet many in Congress have been reluctant to press their role in deciding on war, even as they score partisan points about putting soldiers in harm's way or incompetent war planning.
Though a constant of recent decades, the lack of clarity over war powers could well shoot back to the fore in times of crisis. The House and Senate are considering hard-hitting resolutions on Iran that critics contend could be cited by the Bush administration as providing legal standing for initiating a war.
The latest effort to bring reform to the war powers question wouldn't block a president from acting, but it would demand that he or she consult—and that Congress take a clear stand—on future wars.