Monday, January 15, 2007

Exercising the War Powers Act

On January 12, President Bush spoke with CBS 60 Minutes’ correspondent Scott Pelley on the subject of Iraq. Two days earlier, Bush had addressed the U.S. and world publics, confirming what had been widely touted and widely leaked as a “new strategy for victory.”

Pelley began the interview by noting that he and the president were in the same room where the “war on terror” began – the room in which plans for the attack on Afghanistan and al-Qaeda were first discussed. Bush’s response began with what he called a “correction”: the war on terror began on the streets of New York when an enemy attacked us.”

Bush was half-right, and so was Pelley. Insofar as U.S. Central Command had no current contingency operational plan, the Camp David meeting of the “war cabinet” was the initial response to the September 11th, 2001 destruction of the World Trade Center and the attack on the Pentagon. Bush’s statement is correct to the extent that before September 11th, the U.S. considered and generally responded to acts of terror as a law enforcement challenge. Bush was the one who made it a “war” through presidential
rhetoric, which, concurrently, bestowed undue status on al-Qaeda.

In concert with three rubber-stamp congresses, Bush has managed to morph the underlying assumption of the social contract between the public and those chosen to govern in accord with the provisions of the U.S. Constitution. The “steady state” of society that the Founders anticipated was one of non-belligerency, whether intra- or inter- national. For Bush, the “steady state” is war, and this in turn activates his constitutional status as commander-in-chief of the armed forces of the United States. There is no equivalent in peacetime, no commander-in-chief of the nation.

The nation has endured “Bush at war” for 64 months, and after his speech last week we seem destined to remain at war for another 12 to 18 months, at least. This extension should not go unchallenged by the Congress. The vehicle for raising the issue is the 1973 War Powers Act, passed over the veto of Richard Nixon but never put to the test in the Supreme Court.

The Act re-affirms that : “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

But the Act then clearly re-affirms that the three branches of government do not collapse into one simply because the U.S. is attacked or war is declared:

“The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.”

The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

The Act then describes reporting frequency: “the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

Congress has deadlines to meet.

“Within sixty calendar days after a report is submitted or is required to be submitted…whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

Then there is the clincher – and the reason why neither party has challenged the Act when holding the presidency: “Notwithstanding [the above], at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.”

The Democrats in Congress talk about introducing a resolution opposing the dispatch of another 21,500 U.S. troops to Iraq. How they phrase it will be the first test of their resolve, their bi-partisanship, and their commitment to heeding the voice of the people.

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