Paul Pillar

War Powers Reconsidered

Jim Webb, the one-term (by choice) senior U.S. senator for Virginia, has been able to observe from several vantage points the multiple issues involved in going to war. He is a Marine veteran of the Vietnam War, father of a Marine who served in the Iraq War, observer as an embedded journalist of the Afghanistan War, a former assistant secretary of defense and secretary of the navy, and currently a member of the Senate committees on armed services and foreign relations. This week he spoke on the floor of the Senate about the executive branch's appropriation for itself of decisions to go to war, notwithstanding the U.S. Constitution's assignment to Congress of the power to declare war. “What has happened,” asked Webb,

to reduce the role of the Congress from the body which once clearly decided whether or not the nation would go to war, to the point that we are viewed as little more than a rather mindless conduit that collects taxpayer dollars and dispenses them to the President for whatever military functions he decides to undertake?

Webb acknowledged that the military's role in national security since World War II has been more continuous, with more need to operate on short notice, than warfare as the Founding Fathers knew it. But “the fact that some military situations have required our Presidents to act immediately before then reporting to the Congress,” Webb said,

does not in and of itself give the President a blanket authority to use military force whenever and wherever he decides to, even where Americans are not personally at risk and even where the vital interests of our country have not been debated and clearly defined. This is the ridiculous extreme that we have now reached.

Webb has been particularly disturbed by last year's military intervention in Libya, a supposedly humanitarian operation that quickly became a regime-change operation. The Obama administration, through some legal casuistry, contended that the operation did not come under the War Powers Resolution because U.S. forces played only a supporting role to NATO allies.

The War Powers Resolution has had its own problems ever since Congress passed it by overriding Richard Nixon's veto in 1973. Every president since Nixon has considered it unconstitutional. The issue Webb is raising, however, goes well beyond legal issues involving that piece of legislation. The issue concerns what criteria go into a decision to use military force and who should weigh those criteria. An ostensibly humanitarian operation such as the one in Libya, which is very much a war of choice, ought to have an especially broad weighing. It is not a matter of immediate protection of a U.S. interest but instead of deciding how much humanitarian succor is worth how much of the cost and risk involved in any U.S. military expedition overseas. There is no reason that sort of decision should be made solely by the executive. There is every reason the decision should involve the people's representatives in Congress. Or as Webb put it:

I can't personally and conclusively define the boundaries of what is being called a "humanitarian intervention." Most importantly, neither can anybody else. . . . Some of these endeavors may be justified, some may not. But the most important point to be made is that in our system, no one person should have the power to inject the United States military, and the prestige of our nation, into such circumstances.

The recently announced creation of an “Atrocities Prevention Board” headed by White House staffer and self-described “genocide chick” Samantha Power makes these issues all the more acute. The operation led by Power will by its very nature have a pro-intervention bias. The check and balance provided by the legislative branch will be needed more than ever.

Senator Webb intends to introduce legislation that will try to close the humanitarian loophole by requiring, in any situation in which U.S. interests are not directly threatened, that Congressional approval be obtained before the introduction of American military force, with a further requirement for Congress to debate and vote on the matter promptly. Careful draftsmanship will be needed to deal with questions of the exact scope of any such legislation. But Webb's proposal deserves serious attention.