On war powers, the case for a consistent process

Earlier this week, The Constitution Project’s resident scholar Louis Fisher weighed in on the War Powers Consultation Act of 2014, a bill I’ve introduced with Sens. John McCain (R-Ariz.) and Angus King (I-Maine) to repeal the War Powers Resolution of 1973 and replace it with a more workable process for making the most serious decision entrusted to Congress—whether to initiate military action.

I agree with Fisher that “the decision to go to war demands full debate within the Congress and the nation.”  But Fisher’s piece assumes that the status quo accomplishes that result.  To the contrary, history demonstrates that there is no consistent procedure or practice to require the full debate and Congressional accountability that our Constitutional framers envisioned.  That’s why we are pursuing this legislation. 

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The Constitution establishes a clear demarcation of authority.   Congress is given the power to declare war and fund military operations.  The president is the Commander in Chief and ultimately responsible for the execution of war once initiated.  The principal drafter of the Constitution, James Madison, described the allocation of responsibility as follows: “The constitution supposes what the History of all Governments demonstrates, that the Executive is the branch most interested in war and most prone to it.  It has accordingly with studied care vested the question of war in the Legislature.”

While the Constitution is clear, our history doesn’t match the Framers’ intent.  Congress has formally declared war five times in our nation’s history.  Presidents have initiated military action prior to, and in many instances without, any Congressional authorization more than 120 times.  Madison wisely understood that presidents overreach.  But he failed to grasp that the Legislature often wants to avoid responsibility for hard decisions and matters of war are among the hardest.  We seek to correct this dangerous trend and develop a clear norm for Executive and Legislative consultation, debate and decision-making.

The absence of any clear norm is made plain by examining the four major military actions commenced by the United States since 2000.   In the immediate days after 9/11, Congress passed a broad and vaguely worded Authorization for Use of Military Force (AUMF), granting the president the power to take military action against those responsible for the attack.  The AUMF included no geographic or temporal limitation and has been described by current administration officials as likely authorizing the conduct of global military action for at least another 25-30 years, far beyond what was originally intended.    In the weeks before mid-term elections in 2002, Congress granted the president broad power to use diplomacy and, as a last resort, military force in Iraq.  The debate was driven by electoral timing, not security imperatives, and led to the initiation of a deeply controversial war five months later without additional Congressional input.  In 2011, President Obama committed United States military force to a NATO mission in Libya for humanitarian reasons without any Congressional approval.  He was formally censured by the House of Representatives for doing so.

Most recently, the president confronted the Syrian use of chemical weapons in August 2013 against civilians, in violation of clear international law.  Many of us urged the president to seek Congressional approval prior to military action.  He did so, advancing a specified rationale—the punishment of the Assad regime for using chemical weapons and the degradation of using them in the future.  Only the 18 members of the Senate Foreign Relations Committee voted on this important issue. 

The Syria vote was generally consistent with the Framers’ view of how military action should be initiated, but the president was roundly criticized by members of Congress, commentators and allies for not acting unilaterally.  Such criticism reaffirmed the fact that there is no clear history or understanding of how these decisions should be made.

In 2007, the Miller Center at the University of Virginia convened a panel of experts who have grappled with these decisions as members of Congress, Secretaries of State, White House officials, diplomats, military leaders, judges and scholars.  Under the leadership of former Secretaries of State James Baker and Warren Christopher, the National War Powers Commission reviewed the history, including the 1973 War Powers Resolution, and concluded that there is no clear decision-making norm for initiating military action.  The commission then developed a straightforward process to honor the original constitutional vision that is the basis for the legislation we have introduced.  

Our legislative proposal has three parts.  It establishes a basic definition for war in this modern-age of drones, cyber-attacks and dangerous non-state actors such as Al Qaeda.  It establishes a permanent bipartisan and bicameral Consultation Committee of Congress that will be in continuous dialogue with the Executive Branch regarding security matters that could lead to a need for military action.  This consultation requirement avoids a common confusion—a president claiming to have “consulted” with Congress by mere fact of speaking with leadership or a few committee chairmen.  And our bill mandates full debate and Congressional accountability for any initiation of defined military action.  Never again should there be military action without the requirement that all members of Congress vote yes or no.

The bill is a major undertaking and senators from both parties are now seeking input so that it can be refined prior to action.  We welcome thoughts from interested parties about how to create a more intentional process, true to that Constitutional command, for making the best decisions about the initiation of war.  A better process will not make these hard decisions easy.  But the current lack of any consistent practice makes these difficult issues even more challenging.  The costs of war to the nation and those who bear the burden of fighting are too great to accept a status quo that encourages Congress to abdicate its responsibility in this critical area.

Kaine is the junior senator from Virginia, serving since 2013. He sits on the Armed Services; the Budget; and the Foreign Relations committees.