Congress and the Gulf. The case against invoking the War Powers Resolution

WHILE I was one of the original co-sponsors of the War Powers Resolution in the House of Representatives, I have come to feel that the resolution has proved counterproductive. Many members of Congress are suggesting that the War Powers Resolution should apply to current United States military operations in the Persian Gulf. Neither the situation in the Gulf nor the action of Congress to date justifies such a step. The War Powers Resolution, enacted over presidential veto in 1973, requires the president to consult with Congress before introducing US military forces into actually or potentially hostile situations. It also requires the president to report within 48 hours on the introduction of US forces into such situations or into foreign territory in a combat mode. The president would be required to withdraw the forces within 60 to 90 days if Congress did not extend the period. The president is also supposed to report periodically during the deployments.

Many observers believe that the War Powers Resolution is an unconstitutional intrusion on the powers of the president. The resolution attempts to impose a legislative framework on the exercise of the president's constitutional prerogatives; in specific cases, the resolution could create obstacles for the president's exercise of his constitutional responsibilities.

The constitutionality of the War Powers Resolution has never received a decisive judicial test. The courts have been unwilling to intervene in disputes between the executive and legislative branches in which there were major unresolved issues.

When members of Congress and others challenged the deployment of military advisers to El Salvador in 1982, for example, the courts refused to apply the resolution, on the grounds that Congress had not attempted to clarify its applicability. It is highly likely the court will take the same position in the pending lawsuit by several members of Congress against US Navy protection for the reflagged Kuwaiti tankers.

Assuming the constitutionality of the War Powers Resolution, does the current situation in the Gulf call for its being used? I believe that neither the substantive requirements, as clarified by previous executive-congressional practice, nor the procedural prerequisites have been met. In fact, the basic decision whether to proceed under the war powers framework appears to be largely a political question rather than a legal one. For the good of the country, Congress should work together with the president to see to it that any application of the resolution is designed to support rather than detract from the efficacy of US military deployments in complex and dangerous circumstances abroad.

It is true that there have been hostilities in the Gulf involving US forces. On May 17, the USS Stark was struck, while on routine patrol, by a missile fired from an Iraqi warplane; there was grievous loss of life and serious damage to the vessel. On July 24, the Bridgeton, a Kuwaiti-owned US-flag tanker being escorted by US naval vessels, struck a mine that in all probability was placed in its path by Iranian forces.

On Aug. 10, a US interceptor fired two missiles at an Iranian warplane approaching a US reconnaissance aircraft. On the evening of Sept. 21, US helicopters incapacitated an Iranian vessel observed laying mines in international waters; several Iranian sailors were killed or injured and 26 taken into US custody. The next day, warning shots were fired at an Iranian hovercraft approaching the US flagship at high speed.

Most recently, on Oct. 8, US helicopters responded to an attack from Iranian patrol boats, sinking one, damaging two others, and causing serious losses to their crews. Shortly thereafter, shots were fired from an Iranian oil platform as another US helicopter was passing.

The mere fact of hostile action does not trigger the War Powers Resolution, however. It is true that the resolution speaks of ``hostilities ... or situations where imminent involvement in hostilities is clearly indicated by the circumstances.'' Military operations in support of maritime freedoms are not acts of war under international law, however.

In the Corfu Channel case, which arose when Albania damaged transiting British warships with mines, the Permanent Court of International Justice (under the League of Nations) decided that reparations were owed to Britain because the ships were in ``innocent passage'' - notwithstanding the fact that they were on a show-the-flag operation.

The administration has refrained from applying the War Powers Resolution to military operations designed to uphold traditional maritime freedoms, and Congress has never objected to this practice. For example, in August 1981, President Reagan did not report under the War Powers Resolution on the downing of two Libyan fighters over the Gulf of Sidra, which Libya claims as its territory. The US Navy returned to the Gulf of Sidra thereafter without reports being filed. Finally, in the spring of 1986, during a period of high political tension with Libya, the US fleet returned to the Gulf of Sidra for exercises. On March 24, 1986, US forces responded to Libyan military movements by attacking Libyan vessels and coastal missile sites. The President reported to Congress the next day, but not under the resolution.

Because of such complexities, Congress should engage in constructive dialogue with the administration and not attempt to invoke the War Powers Resolution unilaterally. This follows not only legally but because premature or unwise application of the resolution could have undesirable political consequences at home and abroad. When US forces are committed to a dangerous mission abroad, disputes over war powers can harm their morale, divide the country, communicate uncertainty to our friends overseas, and send a signal of vacillation to our opponents.

The situation in the Gulf changes day to day. Congress deserves to be consulted fully and often on the evolving US military and political objectives in the Gulf. The decision to invoke the War Powers Resolution, however, should be taken only after serious reflection, dialogue, and the development of a measure of consensus in the country as a whole. Otherwise, attempts to apply the resolution will fail - as occurred in the Senate Sept. 18 when an amendment to invoke the resolution was tabled by a vote of 50-41.

Successive administrations have been extremely cautious in agreeing to execute war powers procedures. The record of the current administration is actually quite positive in this regard. While the administration did not consult with Congress on the freedom-of-the-seas operations in the Gulf of Sidra, the President did consult and promptly report on the April 14, 1986, air raid against Libya itself. Congressional leaders were consulted hours before the onset of hostilities, and the President reported on the operation, ``consistent with'' the resolution, within two days.

The administration has also reported on significant developments in the Persian Gulf. On June 15, pursuant to congressional request, Secretary of Defense Caspar Weinberger reported on planned naval support for the reflagged Kuwaiti tankers; he stressed that consultations with Congress had been going since Kuwait agreed to the administration's reflagging proposal. Secretary of State George Shultz reported May 20 on the Stark incident, citing the President's authority and the fact that the US had maintained a naval presence in the Gulf for 40 years. On Sept. 24 and Oct. 10, President Reagan reported on the incidents involving the mine-laying vessel and the patrol boats; he cited the historical US presence in the Gulf, his constitutional authority as commander in chief, and considerations of international law which made the US actions defensive in nature.

Experience shows that application of war powers procedures is most successful when the administration and Congress work carefully together to create a framework for cooperation under the resolution. For the deployment of US Marines to the second multinational force in Lebanon, for example, Congress passed and the President signed a joint resolution under which Congress provided its authorization for the deployment and extended the reporting period (thereby preventing further conflict between Congress and the administration) to 18 months.

There have recently been discussions in Congress of an approach that would simply request a full report on operations in the Gulf or even provide specific authorization for a period of deployment sufficient to allow US forces in the gulf to discharge their mission effectively. It would be undesirable, however, to combine such an approach with any near-term date for further congressional action, since this could tend to undercut the authority for deployment. We should by all means avoid the kind of action that the Senate considered earlier, which would have unilaterally invoked the War Powers Resolution and sought to cut off after a brief period legislative authority for US naval protection of tankers owned by friendly Gulf states.

The subject of war powers is a difficult one, because of the historical disagreement between the executive branch and Congress over their constitutional roles concerning military operations abroad. For the benefit of all, every attempt should be made to reach a satisfactory outcome through dialogue between these branches of government.

Recent actions by US allies and comments by leaders of friendly Gulf states show growing international support for US actions to maintain freedom of navigation in the Persian Gulf. Opinion surveys show that the American public understands and supports the President's policy of protecting shipping in the Gulf's vital seaways. To reverse policy at this time would divide the country and confuse our friends and allies abroad. If a provision directly invoking the War Powers Resolution on these operations is sent to the President's desk, I would hope that he would veto it.

Rep. William S. Broomfield of Michigan is the ranking Republican on the House Committee on Foreign Affairs.

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