War-making powers scrutinized in study

by David Lerman

Future presidents should be required by law to consult with senior members of Congress before taking the nation to war, a bipartisan study commission recommended Tuesday.

The commission, headed by former Secretaries of State James A. Baker III and Warren Christopher, called on Congress to pass legislation next year that would create a new consultation process between the White House and lawmakers that is aimed at avoiding clashes over war powers.

The issue has reached a boil in recent years over the Iraq war, as Democrats in Congress pushed to end the war and set deadlines for the withdrawal of U.S. troops.

President Bush has argued that such provisions would infringe on his war-making powers as commander in chief.

Nothing proposed by the National War Powers Commission specifically addresses such policy disputes. But commission members said the legislation they offered promises to ease such tensions by making Congress a more collaborative partner in any future war deliberations.

"We are confident that if this report is followed, it can improve the decision-making when this country decides to go to war," said Baker, who served in the cabinet of the George H.W. Bush administration.

Christopher, who served in the Clinton administration, said, "This new statute will give us a new day of consultation between the president and Congress."

The proposed War Powers Consultation Act would require the president to consult with senior members of Congress before engaging in any "significant armed conflict" lasting longer than a week.

Exceptions would be made for the president to repel imminent attacks, launch strikes against terrorists, and to conduct humanitarian missions in cases of natural disaster, among other things. The act also would not apply to covert operations.

The act also would create a new Joint Congressional Consultation Committee made up of senior congressional leaders and key committee chairmen. The new committee would consult regularly with the White House on any plans for military combat.

Once a major operation begins, Congress would have 30 days to approve it or disapprove it, unless it was authorized in advance.

But if Congress votes to disapprove the operation, the president could veto the measure.
To win broad bipartisan support, commission members said they deliberately avoided addressing the more basic question of when--and whether--Congress should declare war.

"We do not pretend to settle the constitutional question," Baker said. "That cannot be done in the absence of a Supreme Court decision or a constitutional amendment."

Instead, commission members said, they sought to offer a practical process for sorting out war-making disputes.

"We think it would be a marvelous piece of legislation for the next president and the next Congress to pass early on, as a symbol of bipartisanship," said commission member Lee Hamilton, a former Democratic congressman from Indiana who now heads the Woodrow Wilson International Center for Scholars.

The debate over when and how the nation should go to war is as old as the republic itself. While the Constitution makes the president the commander in chief, it gives Congress the power to declare war--and to fund it.

"The need for this has been around literally since 1789," said Taylor Reveley, a co-director of the commission and interim president of the College of William and Mary in Virginia.

Congress addressed the issue most famously during the Vietnam war, when it passed the War Powers Act of 1973 over President Nixon's veto. That act requires congressional consultation in vague terms.

Commission members said the 1973 act should be scrapped because it has never worked as intended and no president since 1973 has recognized it as constitutional.

"It's not effective at best and it's unconstitutional at worst," Baker said. "It's a bad law and it needs to be replaced with a good law."