US Presidents' power to wage war overseas needs to be checked

Invoking the War Powers Act of 1973, the House of Representatives of the United States Congress has voted 224 to 194 to restrain President Donald Trump from going to war with Iran without Congressional approval or consent. The voting in the House was largely on party lines with just three Republicans switching sides and voting for the Resolution; but eight Democrats broke ranks with their party and voted against the measure.

The privileged legislative move that came by way of a concurrent resolution — so that no amendments could be tagged — is nonetheless non-binding and will also not be sent to the President for his signature, if the Senate decides to take up the House version for a vote. Some constitutional specialists maintain that the Senate should take up and vote on the House as it is a privileged motion; others argue that this is not necessary.

In fact, the Senate has its own version on the floor as Senator Tim Kaine, Democrat from Virginia having introduced it a few days before the House move. The only interest is if the move will get a simple majority in the Chamber dominated by the Republicans; but with moderate and centrist Republicans lending weight to the arguments put forth by the Democrats, there is a fair chance that Senate too could deliver the President a blow.

The legislative dance around the Iran War Powers Resolution in the House and Senate will be clear in the next few days — that whether Senate Democrats will vote on the House measure or vote on the Kaine measure, send it across to the House on the lines of a Joint Resolution and then to the White House  for the President’s signature.

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Donald Trump will most certainly veto it leaving it up to the Democrats to come up with a two-thirds majority in the House and Senate to override the veto and make it law. This is precisely what happened to Richard Nixon and the War Powers Act of 1973.

But the circumstances are quite different in 2020 and 1973. Forty-seven years ago both Democrats and Republicans were simply aghast that there was no light at the end of the tunnel as far as the Vietnam War was concerned, a conflict that spawned through the Presidencies of Truman, Eisenhower, Kennedy, Johnson and Nixon. Worse, Presidents Kennedy, Johnson and Nixon used dubious methods to first physically intervene and later further escalate a conflict that President Charles De Gaulle of France warned Washington in the 1950s cannot be won.

President Kennedy sent “unarmed” advisers to South Vietnam only to have weapons shipped through sea; President Johnson upped the ante through the Gulf of Tonkin Resolution in 1964 that turned out to be based on a bogus confrontation with North Vietnam firing torpedos at American warships USS Maddox and USS Turner Joy. Subsequent investigations showed that the American ships were firing at one another on a dark, rainy night.

And President Nixon expanded the Vietnam War to Cambodia and Laos by secretly bombing the Ho Chi Minh trail, a supply route that linked North Vietnam and South Vietnam for the North Vietnamese and National Liberation Front forces. It also came to light that Nixon expanded the war to Cambodia through a “dual book keeping system” that prevented Congress from knowing what was really happening. The height of secrecy was such that even bomber pilots were told of changed cognates only after being airborne or bound by the codes of secrecy.

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The war in Cambodia that came to light through investigative journalism was when Nixon was also burdened with the expanding scope of the Watergate Scandal. Congress in November 1973 decided to pull the plug — the War Powers Act put Congress at the centre of the picture requiring the President to report to lawmakers within 48 hours of any induction of military forces in conflicts overseas, including a detailed report on the justification and how long the deployment could be. Lawmakers then could give authorisation to a President for sixty days and another thirty, if needed.

For all the excitement, the War Powers Act 1973 only gathered dust over the last four decades as successive Presidents not only flouted the requirements or brazenly claimed that the Act was not applicable in a particular context. And for all the shouting that is taking place on Capitol Hill on Trump, Iran and War Powers, the fact remains that lawmakers were also complicit in having the 1973 measure lose steam over the years — either they were not assertive enough or were boxed in by their own in-fighting.

The War Powers Act of 1973 came about as a result of bipartisan consensus on the absolute need to check Executive Power when it came to conflict and commitments overseas. Since then Congress has seen Presidents like Reagan (Greneda), Clinton (Bosnia Herzegovina), Bush (Afghanistan and Iraq), Obama (Libya), and now Trump (Iran), violating not only the letter but also the spirit of the 1973 legislation.

Worse, quite apart from Presidents invoking Executive Powers in foreign and defense policies, Congress itself has given Presidents the AUMF — Authorisation on the Use of Military Force — that President George Bush used to his advantage in 2001 in going after terrorists and 2002 over the Iraq war. In fact, there are those in the Trump White House, administration and allies in Congress that the President’s actions in Iran could derive its legitimacy from the 2002 AUMF provided by Congress.

It is highly unlikely that either Nancy Pelosi, the Speaker of the House of Representatives, or the Senate Minority Leader Chuck Schumer are going to be able to change the rules of the game that has long been flouted by Republican and Democratic Presidents. And for two reasons: first, lack of bipartisanship with the tenor and environment in Washington DC only getting highly polarised since the coming of President Trump in 2017 to the White House. Second, the changing character of overseas conflicts and nature of commitment.

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At the peak of the Vietnam war, there were as many as 500,000 American troops in that South East Asian theatre; and 58,000-plus body bags came home. Gone are the days of carpet bombing or the use of napalms. The 20th and the 21st centuries are looking at unleashing drones or firing off Tomahawk Cruise Missiles from air or sea.

Trump may have a point when he argues that at times Presidents face split-second decisions and hence the inability to inform lawmakers. But if he has the time to tweet, he certainly has the time to pick up the telephone and inform key lawmakers of an impending action he is about to take. Actually this is what upset lawmakers over the killing of General Soleimani — that the President did not notify even a select few and the closed door briefing that came a few days later was not up to the mark.

(The writer was a former senior journalist in Washington D.C. covering North America and the United Nations.)

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