Fighting words: Who gets to declare war?

By Leo Shane III, Stars and Stripes
Mideast edition, Thursday, July 10, 2008

WASHINGTON — No one is really sure who gets to decide when the United States goes to war, according to former Secretary of State James Baker.

"Of course, our Constitution gives our president the powers of commander in chief," he told reporters Tuesday. "But Congress has the power of the purse, and the power to declare war.

"But history indicates that the president and Congress have often disagreed about their respective roles in the decision to go to war."

This week, an independent panel led by Baker, former Secretary of State Warren Christopher and other retired statesmen urged Congress and the president to adopt a new plan governing U.S. war powers, clarifying the process for all overseas military operations.

The commission, established by the University of Virginia’s Miller Center of Public Affairs, said the current system leaves too much uncertainty as to whom the president needs to consult before committing troops, when Congress needs to weigh in and how lawmakers can best stay informed of threats worldwide.

"Of all the agonizing decisions the nation must make, perhaps the most fateful of all is the decision to go to war," Christopher said. "We think this will greatly increase the cooperation between Congress and the president on the way to war, and this is something that the American people … very much want."

An inherent conflict

At the heart of the issue is confusion over how the Constitution lays out war powers.

The framers wrote in the Constitution that Congress has the power to declare war, to raise and support armies, and to repel invasions, but they also named the president as commander in chief, giving him the power to order the armed forces to defend the country.

Nowhere do they specify whose power trumps the other. Over the years both the executive and legislative branches have claimed sole authority.

The commission noted that federal courts have refused to enter the debate.

In 1973, Congress tried to resolve the constitutional divide through a War Powers Resolution, requiring the president to end combat operations overseas within 90 days unless Congress approves the fighting.

But Baker and critics said that law has been largely ineffective, since every president since Richard Nixon has deemed the law an unconstitutional breach of presidential powers. None has filed the paperwork to start the 90-day timeline, and Congress has not challenged the White House in court.

In the case of Iraq, Congress in 2002 approved a measure to allow President Bush to use force if Saddam Hussein refused to comply with United Nations weapons restrictions.

Opposition lawmakers later complained that they were poorly informed and felt Bush overstepped his authority to declare war, and have sought to put time lines and restrictions on forces ever since.

The way forward

The commission’s new plan would establish a joint congressional committee to be the point of consultation for the president before and during any overseas military action.

For any combat operation overseas expected to last more than a week, the president would be required to inform Congress within three days of committing troops. The House and the Senate would vote on a resolution supporting or opposing the action within 30 days of the start of fighting.

If lawmakers oppose it, the resolution could be vetoed by the president like any other piece of legislation, or the president could bring military forces back home.

W. Taylor Reveley, commission member and interim president of the College of William and Mary, said the new plan relies on Congress and the president acting "for the good of the country" rather than dodging timelines for political gain.

But commission members emphasized that simply having a standing committee in Congress to act as a consistent adviser for the president will be a significant change from the current, open-ended consultation requirement for the White House.

"In the (current) war powers bill, there’s no designation for who the president [must consult with]," said Lee Hamilton, commission member who spent 34 years as a representative from Indiana. "Consulting with Congress is an enormously difficult task. You have 535 members, and presidents don’t really know, beyond certain leaders, where to go."

Baker said nothing in the proposal touches the constitutionality issues of who is the ultimate decider in declaring war. Instead, it’s a compromise, making sure that both sides are fully aware and active when the decision is made.

Commission members said they hope the issue will come to a vote before Congress early next year, once a new administration is in the White House.

Members of Congress and both presidential campaigns were consulted in putting together the language, Baker said, but he would not say whether any of those groups had committed to the changes.