WASHINGTON — After 14 years of intense bickering over the meaning of the War Powers Resolution, there finally appears to be a growing consensus among Democrats and Republicans in Congress that the controversial Vietnam-era law is unworkable and must either be clarified or repealed.
A desire to end the quarreling arises out of the current dispute in Congress over how to respond to President Reagan's policy of providing U.S. Navy escorts to 11 Kuwaiti oil tankers now sailing the Persian Gulf under the American flag.
Although there is little doubt that recent clashes between U.S. and Iranian forces in the gulf constitute "imminent hostilities," which technically trigger the War Powers Resolution, neither the Democratic-controlled Congress nor the President is willing to invoke the law. Reagan contends that the law is unconstitutional; many members of Congress view it as flawed.
Nor is it the first failure to invoke the War Powers Resolution during a military crisis involving the United States. In fact, although the resolution has been on the books since 1973, it has never been invoked in its purest form by Congress, and it has never been willingly obeyed by any President.
"After 14 years in which every President from Nixon to Reagan has refused to acknowledge the constitutionality of this law--14 years in which the law has failed to operate as envisaged--a review is clearly called for," declared the Senate Judiciary Committee chairman, Joseph R. Biden Jr. (D-Del.).
"Let us face up to the War Powers Act," said Sen. Patrick Leahy (D-Vt.). "If we do not want to face up to it, then let us be honest enough and just repeal it."
Predictably, however, as more legislators begin to propose better ways to achieve the original objectives of the War Powers Resolution, there are almost as many different ideas under consideration as there are members of Congress--including legislation, court cases and commissions. Leaders of both parties acknowledge that a solution will be difficult to find.
Enacted over a veto by President Richard M. Nixon, the War Powers Resolution was intended to prevent any President from committing U.S. troops to any conflict--as Harry S. Truman did in Korea and Lyndon B. Johnson did in Vietnam--without the expressed approval of Congress. It was designed to preserve Congress' constitutional right and obligation to declare war in an age when the nature of war is changing and most wars do not begin with a formal declaration.
"What we said in passing the War Powers Act was: If Americans are going to lose their lives in conflicts overseas, Congress has to share in the responsibility," said Leahy. "It was intended to get Congress in at the beginning of such a commitment, instead of in the middle, when our only recourse was to support American troops in combat."
Under terms of the War Powers Resolution, the President must report to Congress, within 48 hours after U.S. troops enter into "imminent hostilities," on the anticipated scope and duration of the conflict. Troops then must be withdrawn within 60 days--or 90 days, if the President seeks an extension--unless Congress authorizes their continued presence.
In practice, the law has become a tremendous burden to both Congress and the President--a flash point for controversy between the executive and legislative branches every time American troops come under hostile fire in a foreign land.
"The act has been a failure," said Sen. Alan Cranston (D-Calif.). "It has not prevented Presidents from pursuing risky military adventures before enlisting congressional support. It has not facilitated unity between the legislative and executive branches."
In the Persian Gulf, for example, Reagan has insisted that the War Powers Resolution is not applicable, and, despite endless hours of debate, a filibuster by GOP conservatives has kept the Senate from voting on a motion to invoke it.
All Presidents Balk
Understandably, no President wants to commit himself to a procedure controlled by a potentially disapproving Congress that would restrict his options in a military conflict. And many members of Congress, too, recognize that invoking the resolution suggests weakness on the part of the United States in times of crisis.
As Sen. David Boren (D-Okla.) noted in the current crisis, "We are sending notice to those who would test our will and resolve, who might try to inflict punishment on our own young people exposed to certain dangers in the Persian Gulf right now, that we are in a state of limbo or suspension about the decisions we are going to make."
For this reason, every President since Nixon has sought to skirt the War Powers Resolution in times of military confrontation by filing reports with Congress that are "consistent with" the terms of the law but without directly recognizing the applicability of the law.