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War Powerless

By Steven V. Mazie

AFTER the overwhelming success of Operation Desert Storm, it's no longer President Bush who's the wimp.

With his convincing victory in the Gulf War, Bush has boosted his prestige to a level the American presidency hasn't seen since Truman's surge of popularity after World War II. But as Bush's presidency has become the symbol of American strength, Congress's influence on foreign policy has sharply declined. Its Constitutional war powers are a significant casualty of the Persian Gulf conflict.

Through the first four months of the Gulf crisis, congress was virtually silent. When lawmakers should have been adding their voices to the formulation of Gulf policy, they went home to campaign for reelection. They gave Bush implicit sanction to send hundreds of thousands of U.S. troops into the Persian Gulf without their formal approval.

It was yet another pathetic display of Congressional abdication of Constitutional war powers. Not until two weeks before the January 15 deadline for Saddam Hussein to withdraw his forces from Kuwait did Congress really debate the direction that U.S. policy should take in the region. And by then, it was far too late to effect any meaningful change in policy. Congress had two choices at this last-ditch meeting: continue to give Bush free rein in determining war policy, or suddenly change course and shackle the president and the United National in the 11th hour before the deadline.

Of course, Congress gave Bush the latitude to use "all necessary means" to oust Saddam from Kuwait. That licensed the quick and deadly Operation Desert Storm, which in turn launched Bush's approval ratings through the stratosphere, and made Congress look like nothing more than a hurdle on Bush's steady course toward war.

IN THE AFTERMATH of Bush's war, Congress should take steps to reassert its war powers. Lawmakers should start by amending the well-meaning but unworkable War Powers Resolution, the legislation enacted by a frustrated post-Vietnam Congress over Nixon's veto in 1973.

The War Powers Resolution aimed to "insure that the collective judgment of both congress and the President" will figure into a decision to take the United States to war. But despite its intentions, the resolution has only widened the schism between the executive and legislative branches in determining war policy. And with Bush's unilateral navigation of the Persian Gulf crisis, Congress's effective influence in shaping foreign policy has reached its lowest point since Vietnam.

Under the resolution, the president may direct troops into hostilities, but he must bring them home in 60 days if Congress has not voted to authorize the deployment or extended the deadline to a maximum of 90 days. Despite dozens of troop deployments by presidents in the past 18 years--ranging in scale from Carter's attempt to free the hostages in Iran and Reagan's assault on Grenada to Bush's intervention in Panama and Saudi Arabia--Congress has never invoked the War Powers Resolution.

Part of that is due to Congress's pusillanimity--most lawmakers would prefer simply to go along with the president than dissent and stir up trouble. But Congress' powerlessness in war deliberations is exacerbated by loopholes in the War Powers Resolution that allow the president to avoid consulting legislators.

THERE ARE TWO big problems with the wording of the resolution. First, the president is required to consult with Congress before deploying troops "in every possible instance." This stipulation was intended to allow presidents to act independently of Congress in cases where immediate national security crises require immediate response--and consultation is not "possible"--such as repelling and attack against U.S. territory or rescuing American citizens.

Presidents, however, have taken significant liberties with their interpretation of when consultation is not "possible"--this contingency has extended to cover most situations in which presidents want to deploy troops quickly without the hassle of meeting with Congressional leaders.

There is a second practical problem with the War Powers Resolution that invites presidential abuse: The 60-day clock only begins ticking when the president sends a report to Congress indicating the U.S. troops are situated in an area where hostilities are imminent. Here's the loophole: the president has a choice of three kinds of reports to send to Congress when he dispatches troops abroad, only one of which indicates "imminent hostilities." Only that report sets the clock ticking.

While 500,000 U.S. troops were preparing for war in the Persian Gulf from August to January, Bush never admitted that hostilities were imminent. He never filed the report to Congress, even as the military plans for Desert Storm were being finalized and the January 15 deadline for military action was approaching.

EVERY YEAR since 1973, bills have been proposed to repeal or modify the War Powers Resolution. Not one has become law. The most recent effort to fix the flawed legislation was an amendment proposed by Sens. Robert, Byrd (D-Va.), Sam Nunn (D-Ga.), John Warner (R-Va.) and George Mitchell (D-Maine) in May 1988. The amendment would have made two major adjustments.

First, it would have set up a six person permanent consultative body, made up of the speaker of the House, the president pro tempore of the Senate and the majority and minority leaders of both houses. This group would meet frequently with the president and would have to approve any troop movements before the president could act, which would give Congressional leaders a more significant role in military policy-making. The result would be regular interaction between the executive and legislative branches in shaping national security policy--the process originally envisioned by the framers of the Constitution.

Second, the amendment would have eliminated the resolution's 60-day automatic withdrawal of troops. The cutoff, which unnecessarily ties the president's hands, becomes an excuse for presidents to bypass the resolution's substantive requirement--consulting Congress. The Byrd-Nunn proposal--establishing a permanent consultative group and lifting the 60-day rule--would help the War Powers Resolution to reach its original aims.

Sadly, the amendment died twice in the Foreign Relations Committee in the last three years. No one has been bold enough to reintroduce the measure this year, and there have been no new proposals to repair the flaws of the War Powers Resolution. In the wake of Bush's triumph in the Gulf, congressional demand for a greater check on the president may be politically infeasible.

But if Congress doesn't act now--when its constitutional powers have been abused to the point of ruin--it may never get another chance. The long-abused War Powers Resolution has been dealt a fatal blow by Bush's arrogant disregard of Congress in the Persian Gulf crisis. If Congress doesn't start to take seriously its Constitutional power to declare war, it will effectively lose it.

Lawmakers must introduce a bill along the lines of the Byrd-Nunn amendment to make the War Powers Resolution do what it set out to do prevent presidents from unilaterally bringing the United States into war. Allowing presidents to make war singlehandedly--though it may have worked in Bush's Operation Desert Storm--is an extremely dangerous precedent. As the Founders warned, and as Vietnam confirmed, a decision to go to war is too important and for too risky for one person to make.

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