KEENE: What should be done with the war powers act?

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By David A. Keene

A few months ago, I participated in a discussion of the Bush administration's continuing campaign to enhance the powers and prerogatives of the presidency vis-a-vis Congress at which a well-known Washington liberal lamented the scarcity of Republicans and conservatives who share his concerns about constitutional concepts like checks and balances and the separation of powers.

I assured him that things would change should one of his own win the White House in November. For if that happens, conservatives will rediscover the importance of limiting the power of the executive, and liberals will go silent as the fellow they helped elect battles for even more power.

He scoffed at the idea at the time, but history tells us that politicians tend to believe that power should reside with them wherever they may be and that their followers are willing to trust them with powers they believe should be denied their opponents. Thus, this year's Democratic presidential candidate who has railed constantly about the drive by the Bush administration to demand more and more power for itself to ostensibly fight the "war on terror" reversed field on legislation he had earlier opposed and said he would filibuster which gives increased surveillance authority to the executive branch.

There are those who suggest he did so for purely political reasons, but it is just as likely that as the young man senses that as president he will, like his predecessors, want to work to jealously protect existing prerogatives and enhance them where possible. After all and again like his predecessors, he no doubt believes that he as president can be trusted with powers that others might misuse.

His Republican opponent also believes he will one day sit in the Oval Office which explains, I think, why both of their campaigns reacted somewhat coolly last week to the recommendation by the National War Powers Commission headed by former Secretaries of State Jim Baker and Warren Christopher calling for passage of legislation that would ensure "that Congress has an opportunity to consult meaningfully with the President about significant armed conflicts."

Noting both that the War Powers Resolution of 1973 is unworkable and that disputes over the role the president and Congress should play in exercising their explicit, implied and sometimes conflicting powers as "Commander in Chief" on the one hand and the sole entity capable of "declaring" war on the other have been hotly debated since before the ink had dried on the Constitution, the commission has tried to construct a framework that might facilitate consultation without diminishing either presidential power or congressional options in the event of an impasse.

The makeup of the commission itself, organized by the Miller Center of Public Affairs at the University of Virginia, included Judge Abner Mikva, a former congressman, as well as former George H.W. Bush NSC adviser Brent Scowcroft, Clintonite Strobe Talbott and former Reagan Attorney General Ed Meese among others, guaranteeing members with vastly differing partisan and ideological takes on the task they approached and a final product representing a consensus view of what might be done to encourage future presidents and Congresses to come to a meeting of the minds on the use of military force without either handcuffing presidents or allowing them to shut their opponents out of the decision-making process.

One has to give the commission credit for taking on the problem and might even agree that its proposal deserves support without holding out much hope that they will be adopted or, if adopted, be observed by future presidents of either party.

Presidents tend like Lyndon Johnson to see the U.S. military as theirs to use as they wish without seeking either a declaration of war or providing much information to others. They have generally viewed Congress as a hindrance rather than an ally in protecting the nation and have acted accordingly.

The commission proposes enactment of legislation within the first hundred days of the next administration to bring the parties together by establishing a Joint Congressional Consultation Committee consisting of the majority and minority leaders of the House and Senate along with key committee chairmen and ranking members that would meet regularly with the president and to which the president would report on the possibility that the U.S. might have to use force and on progress once forces are deployed.

The legislation would only apply to what the commission calls "significant" and does not require the president to get approval before acting, but provide a means short of cutting off funds for troops in the field for Congress to show its disapproval of such military action. Moreover, by reversing the current assumption that in the absence of approval, the president is on his own, it would require Congress to either object or go along.

Mr. Baker and Mr. Christopher sum things up by suggesting that the legislation would "give Congress a seat at the table (and) the President the benefit of Congress's counsel" while providing "a mechanism for the President and the public to know Congress's views before or as a military campaign begins."

The chief benefit to the country and the president: "History suggests that building broad-based support for a military campaign - from both branches of government and the public is often vital to success."

That's hard to dispute, but as long as presidents and their congressional adversaries share the human weakness and ambition the founders worked to rein in, there is little likelihood that any such legislation will be adopted.

David A. Keene is chairman of the American Conservative Union.