A Law to Make Congress Follow the Constitution

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    Senator Kaine Public Square 52 photo 141021SenatorKaine_zps8b320dca.jpgGoing to war is serious business. Senator Kaine (D-VA) believes that those in whom that power is vested should follow a deliberate process and that the executive should be bound by the decision. The Constitution is not vague about the responsibilities but the world presents circumstances that are.

    In an attempt to clear up any misunderstanding about the authority to commit forces to war, Senator Kaine has joined with Senator McCain (R-AZ) to offer legislation that will establish a process to ensure the judicious application of military force. Yesterday’s participation in the Richmond Times Dispatch Public Square series was part of Senator Kaine’s effort to gather “comments, suggestions, criticisms…” in a strategy to shape and craft the bill.

    Tacitly, President Bush followed the requirements of the War Powers Act, a law passed in 1973 following the frustration over the prosecution of the Viet Nam War. That was designed to rein in the initiative of any President using military force but written with both Johnson and Nixon in mind. Johnson had the support of a Congress that never imagined the scope of involvement that would precipitate. Then Nixon attacked two countries, Laos and Cambodia, without consulting Congress. To be honest, no President went as far as Bush to conform to the letter of the War Powers Act. The others managed to avoid anything more than consulting with Congressional leadership and always went on their merry way. However, the fact that George Bush appealed for authority may be more revealing about how thin he knew his justification was and that he needed cover rather than indicating sincere regard for the law. Plus the timing of the request appears suspiciously politically motivated.

    Further, the authorization that Congress gave President Bush has no sunset or clearly defined achievable objective. As long as it remains in effect, Presidents can and will chase any remnant or offshoot of al Qaida’s ghost, real or imagined, while waving the authorization as justification for centuries to come. So, even if you argue that he and his successor have acted under the authority of the War Powers Act, you observe the same result that arose before the Act, different day: war(s) with a scope never imagined when authorized, being fought in second, third (fourth, fifth…) party countries. Senator Kaine’s obsession with the subject is more than justified.

    The article about yesterday’s discussion generally reports on matters that were said and asked and answered and a video of the event is posted. But what the audience wanted to discuss did not do much to answer the Senator’s original mail. Congress may make the same mistake during debate over this bill. Unfortunately, though his effort will likely deliver a much improved act, if the focus remains on the current situation on the ground framed by the political climate, the bill either will never pass or be amended so as to not be effective. There is a universe of considerations and too many in Congress who are politicians with oxen to gore.

    First, let’s pretend we had a President like the tea party claims we have. One interested in the destruction of the Constitution and disinterested in threats to our sovereignty and/or survival. Willing to stand by while Ebola gets out of hand rather than take action to combat it before it is a worldwide epidemic, for example. Willing to stand aside while a violent non-state terrorist group shapes a military capability and gains and claims territorial sovereignty from which it can continue operations. And Congress demanded that the President take what is obviously responsible action?

    What if Congress passed whatever you want to call what is, in effect, a declaration of war and the Commander-in-Chief did not commit forces to the offensive?  Or moved too slowly? Or unsuccessfully?

    Turn that on its head. What is the recourse for a President whose response to every threat is the military? Who uses a hammer when a screwdriver is appropriate? If it is done to defend our security, when can Congress step in and say that the method is inappropriate for or disproportionate to the threat? Does a cyber-attack justify a kinetic response without Congressional authority?

    Lest we forget there are other elements of national power: economic, diplomatic, informational. What is Congress’s role in the application of those? Though it is hard to discern based upon the past three decades or more, war is a continuation of politics by other means (thank you Carl von Clausewitz), not the other way around. Though well beyond the scope of a three page bill aimed at developing a process to guide us to war, those other elements should just as seriously be coordinated between Congress and the Executive. It is called a National Security Strategy; but with the alienation between the branches and the political parties it is disjointed.

    Finally, what about those entangling alliances? Senator Kaine opined yesterday that those treaties calling for mutual defense, ratified by the Senate, constitute the authority to go to war. But not all treaties are equal. A treaty may provide for a vague response requirement from members such as “come to the aid” in the event of an attack. Should not Congress be consulted for authority in such cases if the President’s response is military force?

    There is something noticeably ironic here that makes Kaine’s thrust different than the 1973 act that Nixon vetoed only to have Congress override. This law is much more about forcing Congress to do its job than it is an attempt to rein in a specific President. If Congress realizes that, it is probably doomed.

    Even if the only thing achieved from the introduction of the bill is a healthy debate about all such matters and a few more, it is better than the pretense that the War Powers Act is worth anything more than the paper on which it is written. With a Congress that is reluctant to assume its proper role balancing power and happy to have someone else to blame, this will be a tough slog for Senator Kaine.