THE recent vote in the House of Representatives regarding a proposed repeal of the War Powers Resolution - which failed by 217 to 201 June 7 - demonstrates why revision, not repeal or retention of the status quo, is needed.
Many House members who want to keep the War Powers Resolution agreed that it needs repair. But efforts to rectify its flaws, as I have proposed, encounter myths that undermine support for any war powers law. These myths deserve debunking:
Myth No. 1: The War Powers Resolution was designed by liberals seeking to trump a weakened Richard Nixon. In truth, the 1973 law curbing the president's power to send troops abroad was the product of cautious statesmen seeking to resolve a serious constitutional imbalance. Its architects in the Senate were Jacob Javits and John Stennis, hardly radicals. Their handiwork failed - scorned by power-hungry presidents and ignored by timid Congresses.
Myth No. 2: The 60-day time limit encourages our adversaries. Former Senate majority leader Howard Baker, once a co-sponsor of the War Powers Resolution but now a proponent of its repeal, contended recently that the narrow Senate vote authorizing the deployment of US forces to Lebanon in 1983 heartened the terrorists who bombed the Marine barracks. But with or without a war powers law, American willingness to undertake sustained hostilities will always be subject to democratic pressures.
Four years ago, the Senate voted 52 to 47 to authorize the Gulf war. Saddam Hussein, I suspect, didn't find solace in the result. More importantly, at home, opponents of the rush to war closed ranks behind President Bush when hostilities commenced. Undeniably, that Congress had authorized the war was an important unifying force.
Myth No. 3: The President needs "flexibility" to respond to crises. What these people are saying is that we should give the president unfettered power to launch wars.
But the Framers of the Constitution made a different choice. George Mason summed up the view of the Philadelphia convention: Presidents could not be trusted with such power.
Myth No. 4: The law is "unworkable." The law has not failed because its procedures are overly complex or cumbersome; rather, it is because both branches failed to abide by it. Presidents have avoided triggering the law's 60-day time limit on troop deployment. Congress has too. Courts have dodged the issue by saying they wish to avoid judicial intervention in "political" fights.
A certain amount of legislative-executive friction is inevitable on use-of-force questions. But the absence of a workable war powers framework has invited interbranch warfare that has become chronically debilitating.
The question then, is this: how to devise a war powers law accepted by both branches and both parties? My legislation sets forth two practical procedures:
r Delineate authority. The War Powers Resolution omits presidential powers endorsed by the Founders: the power to repel attacks. My bill delegates four more powers to the president - to respond to or forestall terrorists attacks, to respond to a severe and direct threat to supreme national interests, to free Americans from imminent danger, and to protect air and sea lanes where Americans or United States national security are threatened. It circumscribes those powers by leaving in place the 60-day time clock.
It may be that no such enumeration can be exhaustive. But the aforementioned powers would have sanctioned virtually every use of force by the United States since World War II.
r Eliminate the "timid Congress" aspects. A major flaw in the War Powers Resolution is that it permits Congress to sit on its hands for 60 days and by inaction force a withdrawal of deployed forces. My bill addresses this in two ways: It establishes procedures to ensure a congressional vote, up or down, soon after a deployment; and it explicitly removes the "timid Congress" specter by granting the president the authority he has sought if these procedures fail to produce a vote.
History demonstrates that a president should want an early vote in support of a use of force - at a moment when the American people and Congress usually rally around the commander-in-chief. My bill devises a means for the president to seek, and obtain, such a prompt vote.
The close House vote suggests that a middle ground - neither repeal nor maintaining the current law - may be found. We should continue the search for it.