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Commentary | PERSPECTIVE ON THE WAR POWERS ACT

Repeal It, Don't Invoke It

The congressional measure is a gift for our adversaries, telling them how long to hold out.

May 06, 1999|BRUCE HERSCHENSOHN | Bruce Herschensohn was deputy special assistant to President Nixon

Soon after the fall of Saigon, leaders of North Vietnam wrote their memoirs and consented to be interviewed. Among them were Gens. Vo Nguyen Giap and Van Tien Dung and Col. Bui Tin. With consistency, they praised those Americans who had been publicly critical of U.S. involvement in the war, and noted that such critics in the United States gave them incentive to continue the struggle, even when they were losing.

Liberals generally ignored such postwar confessions. Conservatives generally pointed to those confessions as evidence that liberals were guilty of having given aid and comfort to Hanoi, and that those American critics affected the tragic outcome of the war.

With such recent history, how could some of today's conservatives do what so many liberals did a generation ago, for which we held liberals in such contempt?

Now there are U.S. service personnel in imminent hostilities and there are hundreds of thousands of Kosovar Albanians--not hundreds of thousands of Southeast Asians this time--subjected to unimaginable atrocities in ethnic riddance. There is a time for everything, and this is the time to redirect our anger from Bill Clinton to Slobodan Milosevic who has brought about this horror.

Incredibly, many congressional Republicans have now advocated the invocation of the War Powers Resolution of 1973. That resolution cannot help but put our armed forces in jeopardy in this conflict and future conflicts, as it has in past conflicts.

One of its provisions establishes that the president has to withdraw troops within 60 days unless Congress extends that period. The president may add an additional 30 days, but only if he certifies in writing that those 30 days are necessary to protect U.S. forces during their withdrawal.

The War Powers Resolution gives the power to Congress to act as commander in chief, not only by action but by inaction. If the Congress does nothing, our troops have to leave an area of imminent hostility in 60 to 90 days. During that period, the resolution states, if Congress wants an immediate withdrawal of U.S. forces, they need only pass a concurrent resolution to that effect. That means that Congress has the right to veto a presidential action, clearly against the constitutional role given it. The president would not be able to veto its decision.

When the bill came to President Nixon's desk, he vetoed it, calling it "both unconstitutional and dangerous to the best interests of the United States." He said, "If this resolution had been in operation, America's effective response to a variety of challenges in recent years would have been vastly complicated or even made impossible. We may well have been unable to respond in the way we did during the Berlin crisis of 1961, the Cuban missile crisis of 1962, the Congo rescue operation in 1964, and the Jordanian crisis of 1970, to mention just a few examples."

The 93rd Congress overrode the president's veto, and this resolution of Congress has been a weight on the shoulder of presidents since that time.

Since no president wanted to give the resolution credibility, and at the same time no president wanted to act against it, they took care not to state they were "acting under" its terms but, rather, that they were simply acting "consistent with" its terms.

But the threat of Congress invoking the act hanging over their heads has claimed casualties.

In 1983, when a truck smashed into U.S. Marine headquarters in Beirut with a cargo of explosives destined to kill 241 U.S. soldiers, that yellow truck rammed through a barbed wire fence and went past two sentry posts. The Marines on duty were armed with unloaded weapons and the guards stated that the truck was going too fast for them to load the bullet clips into their automatic rifles and then fire at the truck. They didn't have bullet-clips already fastened to their rifles because they were obeying orders given, consistent with the terms of the War Powers Resolution.

When it was discovered by CNN that a U.S. soldier in El Salvador was carrying an automatic rifle while he was helping Salvadoran officers replace a bridge that had been destroyed by guerrillas, orders came from Washington for that soldier to be taken out of El Salvador; he was reprimanded for having that rifle with him while he helped replace the bridge in dangerous territory, the expulsion and the reprimand consistent with the terms of the War Powers Resolution.

When our ships at sea fired at Syrian-held positions that were blasting Beirut, our commanders were ordered to stop, consistent with the terms of the War Powers Resolution.

If there is some evidence that would suggest that U.S. forces are in an area of imminent hostility without a declaration of war, then the president of the United States is in jeopardy of being in violation of the War Powers Resolution. Like a gift for an adversary, it gives a published timetable, telling that adversary how long to hold out.

President Reagan said, "I would like to emphasize my view that the imposition of such authority and inflexible deadlines creates unwise limitations on presidential authority to deploy U.S. forces in the interests of U.S. national security. For example, such deadlines can undermine foreign policy judgments, and encourage hostile elements to maximize U.S. casualties in connection with such deployments."

After so many years of fighting against the War Powers Resolution, congressional Republicans shouldn't invoke it. They should repeal it.

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