The War Powers Consultation Act: Tonkin at 50
Sunday, August 10, 2014 marked the 50th Anniversary of President Johnson’s signature of the Joint Resolution to promote the maintenance of international peace and security in southeast Asia, also known as the Tonkin Gulf Resolution. Fifty years after Congress resolved to “approve and support the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” The resolution gave President Johnson the authority to “take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its Freedom.” The resolution was an open-ended blank check for a quickly escalating war in Vietnam that lasted 11 years, required conscripted service, claimed over 52,000 American lives, failed to preserve the political independence of South Vietnam, and forever changed the fabric of the American military and civil society. The Resolution was the first and most significant of several concessions of Congress’s warmaking power to the President over the next 40 years, and power has continued to accrue with the executive ever since.
The Resolution had profound implications for then Lieutenant Commander John McCain, a Navy pilot shot down over North Vietnam on his 23rd combat mission. A little over 46 years later, Senator John McCain co-sponsored a bipartisan bill introduced by Senator Tim Kaine called the War Powers Consultation Act of 2014. The bill has been referred to the Committee on Foreign Relations, where it has stalled without a hearing. In his remarks on the bill’s introduction, Sen. McCain observed that the bill culminates the work of the bipartisan National War Powers Commission, led by former Secretaries of State James Baker and Warren Christopher, to craft a legislative proposal to replace the controversial War Powers Resolution of 1973 – a statute that is one of the only 110 laws in U.S. history to have been enacted over a President’s veto or pocket veto. Senator McCain noted that the changing nature of war indicates that the congressional declarations that immersed America in state-on-state, mass-scale conflicts (a là WWII) will be exceedingly rare in the future. Even so, Congress—the federal political institution intended to be most closely reflective of the will of the people by virtue of its membership and dispersion of representation—retains an important role in determining whether, how, when, and why we engage the nation’s military forces in armed conflict. If our military goes to war, it should be because the American people believe it is necessary, just, and warranted. Particularly given the judiciary’s reluctance to involve itself in questions on war powers, Congress is the institution best positioned to ensure that judgment is reflected in national security policy choices, with authority shared between the executive, acting alone, and the Congress, acting collectively.
The title of the War Powers Consultation Act of 2014 is powerful standing alone. Its purposeful use of word ‘consultation’ implies dialogue and compromise. Decisions on when to commit America’s sons and daughters to increasingly arduous fights against enemies difficult to classify and identify and to achieve and shape desirable political outcomes increasingly challenging to define should be the product of a robust and exhaustive exchange of policy ideas and discussions over the wisdom and propriety of military action. The perspectives of the elected representatives of the people of Maine, Wyoming, Alaska and Montana, overrepresented per capita in production of military recruits, are as valuable in forming military policy as those of a second-term President with no political future to protect. Absent a statutory mechanism encouraging or in some cases requiring consultation, the voices of parents in Billings and Cheyenne may be drowned out by the drumbeat of war pounding down Pennsylvania Avenue and the halls of the national security apparatus, propagated by military services itching to justify hardware, budgets, and manpower end strength and hawkish think tanks and academics bent on testing political theories on the use of force.
The War Powers Consultation Act provides a mechanism for coordinated action between the executive and legislative branches to ensure informed, vigorous deliberation occurs prior to big decisions on committing our armed forces to conflict. It establishes a Joint Congressional Consultation Committee comprised of party leaders in each house of Congress and the leadership of key national security committees. The President must consult with this Committee “regularly” regarding “significant matters of foreign policy and national security” as well as confer with the Committee prior to deploying military members into “significant armed conflict” regarding the circumstances requiring deployment and the objectives and the conflict’s estimated scope and duration. Finally, the President is required to return to the Committee for consultations every two months during the duration of the armed conflict.
The act is not exclusively limiting of executive power, however. It provides the President authority to conduct covert actions shrouded in secrecy and operational security without prior consultation in true emergencies, allowing him three days after action is undertaken to report the circumstances to the Committee. Nonetheless, the Act does require the introduction of a joint resolution of approval for congressional consideration and voting within 30 days after deployment of military forces, unless Congress acts to authorize the deployment sooner. If Congress fails to pass the approval resolution, it requires introduction of a joint resolution of disapproval – forcing Congress to take a position one way or the other on the President’s action.
The current crisis in Iraq lends itself as a near-perfect exemplar for which this new statute would be vital to ensuring the application of U.S. military power is reflective of our strategic interests balanced against national will. Relying solely on his constitutional Article II power, the President has authorized air strikes against Islamic State of Iraq and Syria (ISIS) forces to protect U.S. interests and facilities, and to mitigate genocidal attacks against the religious ethnic minority Yazidi population in and around Sinjar, in Kurdistan. Niether the Authorization for Use of Military Force Against Iraq Resolution of 2002 (AUMF Iraq) nor the Authorization for Use of Military Force of 2001 (AUMF-9/11), by their terms, authorizes the current military action in Iraq, so it must be undertaken on the President’s independent war power. The Article II war power, of course, was designed by the framers to be temporary in nature, enabling the executive to respond to emergencies, but without vesting him with the ability to commit American forces to long-term combat engagements without legislative approval. With good arguments on both sides of the issue regarding the current military intervention, particularly its nature, intensity, scope, duration and escalation, the War Powers Consultation Act of 2014, if it were law, could be instrumental in ensuring robust, sophisticated deliberation occurs which reflects the strategic interests of the nation and the resolve of the people.
It is difficult to argue against an act of Congress that leverages bipartisanship in its design, provides a mechanism for consultation and compromise, and shares responsibility for important national security questions between the president and Congress. The practical issue, unfortunately, is that voting for this Act could force our elected representatives to make even more difficult, politically risky, literally life-or-death decisions in the future. This is, however, the price we pay; the exercise of considered judgment and the collective wisdom of the Congress is what we should require of our representatives, and it is what the framers intended when they divided the war power in Articles I and II of the Constitution. By scheduling hearings and a vote for the War Powers Consultation Act, Congressional leaders have an opportunity to exercise political courage and strategic governance of our country’s national security future, and counter the prevailing narrative regarding congressional intransigence, incompetence, and corruption. Hardly any pursuit could be more important than ensuring our nation’s security policy reflects the will and wisdom of the people filtered through their representatives. Moving this Act through Congress could form the basis for restoring American faith in the institution most ably equipped to represent both their security and their interests.
Butch Bracknell is a retired career Marine, a national security attorney, and a member of the Truman National Security Project. These opinions are his own. A version of this editorial appeared in the Virginian-Pilot (Norfolk) on August 10, 2014.