The War Powers Resolution at 40: Still an Unconstitutional, Unnecessary, and Unwise Fraud That Contributed Directly to the 9/11 Attacks

Article excerpt

Abstract

The 1973 War Powers Resolution was a fraud upon the American people, portrayed as a legislative fix to the problem of "imperial presidents" taking America to war in Korea and Vietnam without public approval or the constitutionally required legislative sanction. By its own terms, the War Powers Resolution would not have stopped the Vietnam War. Sadly, this and other legislative intrusions upon the constitutional authority of the president contributed to the loss of millions of lives in places like Cambodia, Afghanistan, Angola, and Central America. The statute played a clear role in encouraging the terrorist attack that killed 241 Marines in 1983, and equally clearly encouraged Osama bin Laden to kill thousands of Americans on September 11, 2001. Similarly unconstitutional usurpations of presidential power prevented our Intelligence Community from preventing those attacks and dissuaded a key ally from sharing sensitive information that might also have prevented them. After forty years, the time has come to bring an end to this congressional lawbreaking.

CONTENTS

I.   INTRODUCTION

II.  THE WAR POWERS RESOLUTION IS UNCONSTITUTIONAL

III. THE WAR POWERS RESOLUTION IS UNNECESSARY

IV.  THE WAR POWERS RESOLUTION IS UNWISE

V.   CONCLUSION

I. INTRODUCTION

More than forty-six years have passed since I first became interested in the constitutional separation of foreign affairs powers while listening to a lecture by the legendary University of Chicago scholar Professor Quincy Wright. (1) At the time I was working on my undergraduate honors thesis on the war in Indochina, and following graduation I was commissioned in the Army and served twice in the Republic of Vietnam. After leaving the Army at the end of 1971 as a junior Captain, I accepted a fellowship at Stanford's Hoover Institution on War, Revolution and Peace where I continued my work on the war and authored the first major English-language history of Vietnamese Communism. (2)

The War Powers Resolution was enacted over President Nixon's veto on November 7, 1973, as a response to the Vietnam War. (3) Just over a month later, my Hoover Institution fellowship landed me in the office of Assistant Senate Minority Leader Robert P. Griffin, of Michigan, a member of the Foreign Relations Committee. Soon thereafter, the Senator hired me off of the fellowship and for five years I served as his national security adviser, dealing directly with every war powers issue addressed in the Senate during that period. In 1981, while serving as Special Assistant to the Under Secretary of Defense for Policy, I wrote an eighty-page memorandum on the modern utility of formal declarations of war. (4) Later, while I was an attorney in the White House, I frequently briefed members of Congress (including, at the time, such largely unknown figures as Representative Newt Gingrich and Senator Dan Quayle) about the 1973 statute at the request of the National Security Adviser. I worked on war powers issues again in 1984-198585 while serving as Acting Assistant Secretary of State for Legislative Affairs.

As a scholar, I've published two books (5) specifically about the War Powers Resolution and testified repeatedly in both the House and Senate on the statute. My 1,700-page SJD (academic law doctorate) dissertation dealt heavily with war powers issues, and over nearly a quarter-of-a-century I've taught courses and seminars dealing with constitutional war powers at the undergraduate and post-graduate level at the University of Virginia, where in 1981 I co-founded the Center for National Security Law.

All of that is to emphasize that these are not new issues to me. And while I like to think that my views have evolved and become perhaps a bit more sophisticated over the decades, my basic conclusions have not changed since 1973--irrespective of which political party has occupied the White House. Put simply, I believe the War Powers Resolution is unconstitutional, unnecessary, and unwise. …