The Hollow Order
Rebuilding an International System That Works
We live at a juncture where U.S. foreign policy is at higher risk than at any point since the end of the Vietnam War. Great and sometimes confused and countervailing interests are at stake in Nicaragua; indeed, across Central America. The Persian Gulf is a tinderbox, which could be engulfed in the flames of Islamic fundamentalism. And we have seen the Middle East’s coastal plain torn and fragmented to the point of anarchy in Lebanon.
Beirut, once the Paris of the Middle East, today gives full and paradoxical expression to all of the tensions that threaten to rip apart the structures of colliding civilizations. We sense, somehow, that society as we have known it since the Enlightenment is under seige by forces beyond our comprehension. There is no place on earth, whether along the East German border, the dividing line between North and South Korea, or even south of the line between Mexico and the United States, in which we do not sense uncertainty and the potential for violence. It is because we have reached this point, at which conflict threatens to overwhelm the comity that marks civilized society, that we must ensure that steps taken to protect ourselves and our institutions do not, in themselves, become violations of what we are and wish to continue to be.
The War Powers Resolution of 1973 remains one of the firmest supports of our determination that the American people will decide their own fate. I am grateful to have played a central role in the formulation of that resolution. It was the first legislation in our history to establish a statutory framework in which Congress and the president could function so as to give meaning to the constitutional authority over war.
In one sense it was—and is—a question of the paramountcy of the civilian over the military; the power of Congress to declare war, which is civilian, and the power of the president, as commander in chief, which is military. We cannot place the great question of war or peace in the hands of a single human being, not even our president. But we are so crowded by our sense of assault that the temptation is great to turn to an individual surrogate to shield us.
Indeed, the President, as I write, is under extraordinary pressure to take action—some kind, any kind—that will validate the effectiveness of U.S. power to protect our citizens in the world beyond these shores. The spotlight now shines with dreary intensity on the aftermath of the hostage crisis involving 40 Americans taken by terrorists in Beirut. There can be no more critical, no more agonizingly difficult political vantage point from which to examine the question of who makes war.
Our Constitution’s Founding Fathers could have had no grasp of the enormous changes and frightening potential of uncontrolled armed conflict in the late twentieth century. But, much to their credit, the statesmanship they exercised produced a document that has lived for two centuries beyond its conception. No other written constitution has survived in such good health over anything approaching a similar span of time.
Those eighteenth-century farmer-politicians had a sense that the fundamental values of a republic can be given effective expression only if the mechanisms of government interlock in such a way as to assure a system of checks and balances that permits action, flexibility and—in grave matters—the bedrock expression of the common will. That is why, among all the other splendid architectural structures within the Constitution, we find the president accorded the powers of "Commander in Chief of the Army and Navy of the United States" (Article II, Section 2) and the Congress empowered with the constitutional responsibility "to declare war" (Article I, Section 8).
The constitution-makers thus divided the responsibility for engagement in armed conflict between the executive and legislative branches of the government. There can be little doubt that their objective here, as elsewhere, was to maintain an unresolved tension between the institutional authority of the two branches, the executive and legislative, thereby leaving the political decision to the people.
The Founders, being men of the eighteenth century when monarchy still flourished, recognized the power of the intense symbolism that would be attached to the office of the president. The person who occupied that post, although designated as the head of a single branch of government, would be accorded recognition as the expression of the nation. In the presidency, fellow citizens would see themselves as "a people." For over 200 years, this extra-constitutional dimension to the president’s authority has tipped the scales whenever there has been an issue between Congress and the president over the authority to engage in armed conflict. There can be no doubt, however, that the constitutional intention was to endow the president with all the powers that ultimately adhere to a military commander but, at the same time, to withhold from him the ultimate authority on the gravest political decision of whether to "declare war."
One can certainly make the case that the restrictions on the power to make war, in the actuality of committing the nation to war, have been successfully flouted by presidents from the days of the Barbary pirates to yesterday’s headlines. On most of these occasions, Congress has backed away from a confrontation with the chief executive as to the constitutional settlement of the question.
One can also make the argument that these violations of constitutional principle have, in and of themselves, changed the meaning of the Constitution. Certainly, if one actually subscribes to the notion that "to declare war" is simply a formality and was so regarded when it was written into the Constitution as a guiding principle, there is little to discuss about the power to declare war. In this case, we are then, constitutionally, citizens of a republic in which the chief executive may risk American lives at any time, at any place on earth, at his own discretion.
I believe the weight of our history strongly implies just the opposite. Further, and of even greater consequence, the presidential incursions on the war powers of the Congress have always been covert and gradual—strongly implying that the men who have violated this congressional power were uneasy over the right and the consequences of their actions. In the 200 or so instances of exercise of presidentially ordered force against foreign enemies, we have yet to see an acknowledgment by the chief executive that he is committing the nation to war. We have had "police actions"; we have had "surgical strikes"; we have had "invitations to assist." We have had, in other words, a bad case of euphemism-itis. For war is war; and the loss of life, the expenditure of treasure and the agony of the people, as we all have good reason to know, is occasioned by acts of war and not by anything else.
I noted earlier that the Constitution’s flexibility was one of the most important gifts made to posterity by the political craftsmen who shaped our institutions. Unfortunately, we have seen that flexibility used to far greater effect in this arena by presidents than by Congress. The manipulative potential in the presidential office is so large that to challenge it under the international gun has taken political courage beyond that of the Congress as an institution through much of our history. The legislative branch has, time and again, been reactive to events as shaped by outside forces, and by presidential initiatives and responses as a function of the president’s self-perceived authority as commander in chief.
Progress has been made in reestablishing congressional authority, although the constitutional struggle continues.
In 1973, an undeclared war in Vietnam that caused greater agony in the United States than any event since the Civil War was drawing to an unhappy and grotesque conclusion. We were forced for the first time in our history to acknowledge a military defeat. Fifty thousand American lives, and countless numbers of Vietnamese lives, bled away in Indochina.
It was this tragic war that finally forced Congress to a succession of acts that limit the president’s power to impose his military writ as he so chooses. The culmination of that effort was the War Powers Resolution, which passed both houses of Congress in November 1973, but only after both houses overrode President Nixon’s veto by the requisite majorities of two-thirds. This veto was symptomatic of the position of presidents who resist any curb on their power to commit the nation to war. The veto was overridden because of the urgent need of the people to establish some restraint on the presidency and to safeguard the constitutional responsibility vested in the Congress to declare war, a power to be exercised by the Congress alone without any presidential consent or signature.
Under the War Powers Resolution, the president must consult with Congress "in every possible instance" before introducing the armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Under Section 4(a)(1), the president must report to Congress on the status of U.S. troops in such situations. Section 5(b), perhaps the engine of the resolution, requires the president to withdraw such troops within 60 to 90 days unless Congress authorizes their continued presence. He must, in any case, withdraw them immediately if directed to do so by a concurrent congressional resolution, which is not subject to a presidential veto. Recently, however, the Congress did make such action subject to a presidential veto when in October 1983 it gave President Reagan authority to keep the marines in Lebanon for up to 18 months.
The War Powers Resolution did not, and does not, guarantee the end of presidential war, but it does present Congress with the means by which it can stop presidential war if it has the will to act. The resolution does not represent an effort to tie the president’s hands or to deny him his rightful powers—as previous presidents have charged. Rather, the legislation provides the method by which the Congress and the president can render a collective judgment on the question of whether to risk war.
Nevertheless, I must express my misgivings as to the effectiveness of the War Powers Resolution thus far: the resolute will of Congress is the issue here.
The fact is that the last three Presidents—Messrs. Ford, Carter and Reagan—have consulted with the Congress on occasion, sometimes reluctantly and even grudgingly; the consultations have varied greatly in quality from good to superficial. Also, the record shows that presidents took military measures without the effective prior consultation with Congress that is required under the resolution.
President Ford’s actions in the Mayaguez incident in 1975 cost the lives of 40 U.S. marines. In the event, it developed that the ill-fated rescue attempt was unnecessary. In this case the President consulted with a mixed group of members of the House and Senate foreign relations committees after the orders had been issued to the marines to engage in combat and while they were on their way to Southeast Asia. The President did, however, report to the Congress under the War Powers Resolution on this occasion.
In connection with the actions of President Ford in 1975 when U.S. troops and American, Vietnamese and Cambodian civilians were evacuated from Saigon and Phnom Penh, again there was a pass at consultation. It is fair to add that the situation was dire and that statutory law gave some accommodation to the use of troops for these evacuations.
President Carter’s unsuccessful rescue attempt of our hostages held in Iran was also undertaken with no real prior consultation with Congress. It was said only that a guarded reference was made on the subject to Senator Robert C. Byrd (D-W.Va.), the majority leader, a day before the action took place. This was justified on the grounds that secrecy was vital to the operation and that it was humanitarian. But secrets have been kept in the Congress; for example, the Manhattan Project, which invented the atomic bomb; and the danger of leaks is just as real in the White House as it is in the Congress, as history has shown.
President Reagan’s deployment of U.S. marines to Beirut in 1982 and 1983 involved substantial disregard of the War Powers Resolution, when viewed in its totality. When the President first acted in August 1982 to deploy the marines in Beirut to assure the evacuation of the Palestine Liberation Organization fighters, there was real consultation with the House and Senate foreign relations committees. But when the marines were redeployed after the assassination of President Bashir Gemayel of Lebanon and the massacres at the Sabra and Shatila Palestinian refugee camps, the avoidance of the War Powers Resolution began, until a final showdown with the Congress when the marines began to suffer casualties in August of 1983. When the President spoke to the Congress during this latter period, he was careful to skirt the War Powers Resolution in defining his authority, and rather referred to his "constitutional authority with respect to the conduct of foreign relations and as Commander in Chief."
There was considerable comment in the press and in Congress regarding the President’s distinct avoidance of the impact of the War Powers Resolution in his communication with Congress. The actions he was taking were clearly subject to the operative section of the resolution which gives the Congress the power to compel a withdrawal within 60 to 90 days of U.S. armed forces who were obviously engaged in hostilities due to military necessity. The Congress could have compelled such action by itself in invoking that provision of the resolution. In fact, the foreign relations committee chairman, Senator Charles Percy (R-Ill.), and the ranking member, Senator Claiborne Pell (D-R.I.), wrote the President specifying such action. It was only the force of public opinion that finally made the President come to terms on this subject with the Congress.
Then, in reporting to Congress, the President did cite the War Powers Resolution, but took care not to cite the section of the act under which he made the report. In so doing, the President refrained from triggering the time clock that would give him only 60 to 90 days to keep the troops in Lebanon without congressional authority. In this case, public opinion and congressional will compelled the President and the Congress to work out a compromise.
The President was given authority by Congress by a joint resolution in October 1983 to keep the U.S. marines in Lebanon for up to 18 months; he also accepted the fact that if Congress wanted them to be withdrawn sooner, he would have to sign an appropriate resolution to that effect (the Congress could also override by a two-thirds vote of each house). On the other hand, the President conceded that the War Powers Resolution was applicable.
It is significant that an amendment to limit the time to six months was narrowly defeated in committee. The delay in getting the use of the War Powers Resolution and the length of time given in the compromise resolution was inordinately long for such an operation, considering the limit of 60 to 90 days.
This compromise resolution showed congressional reluctance to invoke the War Powers Resolution in a timely way, and according to its terms. Looking back on the death of 241 U.S. marines, because of a suicide truck bombing by terrorists, one wonders whether that tragedy of October 23, 1983, might have been averted if the legislative clock under the War Powers Resolution had been running.
President Reagan’s actions with respect to Nicaragua have caused great concern about compliance with the War Powers Resolution. U.S. troops in substantial numbers have engaged in war exercises in Honduras with Honduran troops on the border with Nicaragua. Mines have been sown in Nicaraguan waters and the ships of other nations endangered, and "contras," rebels fighting Nicaraguan forces, have been supported under the commander in chiefs authority. Here, too, is a mixed bag, as Congress has voted non-military aid for the contras.
Perhaps the clearest example, thus far, of presidential indifference to the statutory obligation to consult with Congress on war has been our action in Grenada, desirable as this may have been. Senator Charles McC. Mathias, Jr. (D-Md.), a ranking member of the Senate Foreign Relations Committee, has noted that "congressional leaders were simply called to the Oval Office and told that the troops were under way. That is not consultation. The Prime Minister of Great Britain was advised about the invasion before the President told the Speaker of the House of Representatives or the Majority Leader of the Senate."
If a president had treated the Congress in such a preemptory fashion with regard to any other constitutional mandate, he would have faced an angry legislature jealous of its prerogatives and refusing to allow them to be whittled away. But, in the matter of the greatest power of them all—the authority to put our people at war—Congress has been relatively reluctant in asserting its rightful obligation.
I can bear witness, myself, to the inadequate resolve displayed in such matters by well-intentioned legislators. The pressure of the threat of armed conflict is such that even I found myself willing to compromise, to lean in the direction of the presidency, by giving either more time or a wider latitude of discretion to presidential actions than warranted by the specific provisions of the War Powers Resolution. I was one of those who endorsed President Ford’s Mayaguez action, although at one level I had to know that there was no rationale in the context of the War Powers legislation that should justify a president’s dispatching marines into a combat situation and then reporting to Congress. In the dispute over the use of marines in Lebanon, the effort once more was to put the onus on those who would restrain a president. The President resisted invoking the War Powers Resolution, but Congress threatened to withhold funds. The resulting compromise was too favorable to presidential incursion on congressional war powers.
I recall all of these episodes with deep sadness, for they underline the overweening power of the presidency in periods of crisis. The reluctance to challenge the president is founded in an awareness that he holds, in large degree, the fate of the nation in his hands. We all wish to assist and sustain the presidency. But I have come to the conclusion that the awesome nature of the power over war in our time should require us to withhold, in relevant cases, that unquestioning support of the presidency. This, despite the fact that when U.S. troops are under fire it may appear that a legislator is foot-dragging when he or she questions whether a particular legal requirement has been observed. Such a legislator runs the risk of being attacked for "nitpicking." The overwhelming temptation is to wait and see, to let the dust settle. I believe that this dust will never settle.
The threat to the congressional war-declaring power continues.
A bill to repeal the War Powers Resolution has been introduced in the Senate by Senator Barry Goldwater (R-Ariz.), who opposed it originally in 1973, and by Senator Jeremiah Denton (R-Ala.). Though the bill is not expected to go anywhere, it evidences a determined effort to eliminate the resolution if possible.
Developments beyond the congressional/presidential relationship also have threatened it. When the Supreme Court decided in a 1983 case, Commissioner of Immigration and Naturalization vs. Chadha (unrelated to the war power), that Congress constitutionally could not employ the legislative veto, many concluded that the legal basis of the War Powers Resolution had been fatally undermined. The fact of the matter is that a large part of the act is totally unaffected by that decision. The 60-to-90-day limit on the use of troops overseas is untouched. Provisions constraining the growth of forces and the change of mission also remain untouched by the legislative veto aspect of the court’s dictum. Also, the provisions for reporting and consultation and the legislative priorities for considering measures under the War Powers Resolution remain unaffected.
In this connection, I should note my own strong belief that the War Powers Resolution is founded on levels of constitutional power in the Congress so broad that they raise a political question which the Supreme Court will not review.
Some further efforts to strengthen the resolution may be worthwhile. A rewriting of the original resolution is at present before the Senate in a bill introduced by Senator Thomas F. Eagleton (D-Mo.) with the co-sponsorship of Senators Alan Cranston (D-Calif.) and John C. Stennis (D-Miss.). No hearings have been called on this bill; it would attempt to bring the resolution back to the form adopted by the Senate in 1972, which the House in conference would not accept. The War Powers Resolution, as originally passed by the Senate, specified affirmatively the powers of the president with respect to war. These were: to defend against any attack on the United States, its territories and possessions; to repel any attack on U.S. armed forces abroad; to protect endangered U.S. citizens abroad for purposes of evacuation; and pursuant to specific statutory authorization by Congress.
Cyrus Vance, secretary of state under President Carter, gave a magnificent analysis of the constitutional validity and public-interest benefit of the War Powers Resolution, in delivering the Owen J. Roberts Lecture at the University of Pennsylvania Law School in February of 1984. Mr. Vance also made certain specific recommendations for amendment. He called, for example, for the appointment of a defined group of congressional leaders with whom consultation under the War Powers Resolution would be authorized. This group would include the House and Senate leaders of the majority and minority and the chairmen and ranking members of both foreign relations committees and of both armed services committees. Should the Congress undertake to amend the War Powers Resolution, it should consider such a provision, though the Senate and House foreign relations committees are the appropriate bodies established by Congress for such consultations as are called for by the War Powers Resolution.
The victory on the War Powers Resolution in 1973 was hard-fought and hard-won. At a time of strain between the United States and the Soviet Union it should not be jeopardized. It is most significant that in 1982, when the question arose in the Senate of passing a resolution involving Cuba similar to the 1964 Gulf of Tonkin Resolution against North Vietnam, Senator Dale Bumpers (D-Ark.) moved to reaffirm the War Powers Resolution. His motion carried by a vote of 97-2.
Congress, no matter how great the pressure to knuckle under, must find the will to bring the people to conscious and active support of the War Powers Resolution. This might be done, among other actions, by congressional hearings on the resolution specifically targeted on U.S. policy regarding Nicaragua and any comparable areas of danger.
Congressional will is the issue. It is much more difficult for 535 individuals to sustain a single course of action than it is for a determined president to have his way. That is why Congress must disregard the differences among its members and fight for its constitutional prerogatives. The struggle must be waged on the ground that the interests of the people who suffer and die and pay for war are safeguarded best by joining the Congress in the war power.
Advanced technology, instantaneous communications and super-weapons are an ever-increasing threat to the stability of international relationships. Living on such a quake-filled fault, we are entitled, at least, to an expression of our collective will as to the way we survive—or whether we survive.