By Morton H. Halperin and Gary M. Stern. Morton H. Halperin is the director and Gary M. Stern is legislative counsel of the American Civil Liberties Union's Washington office.
The Christian Science Monitor
AS Congress begins its last session before the election, it is likely to shun the most fundamental decision it is empowered to make: deciding whether to go to war against Iraq. While the president has taken control of our military policy, Congress has kept a low profile, as if it had no say on the matter.
The question of who should make the decision to commit the nation to the use of military force is one that Congress has been all too willing to ignore, even though the Constitution states that only "the Congress shall have power to ... declare war," and notwithstanding the fact that in 1973 Congress passed the War Powers Resolution, over President Nixon's veto, stating that the president cannot use force without congressional authorization.
In practice this means that, except in "emergency situations" to defend against attacks on United States territory and troops and to protect the lives of Americans, the president may not introduce the US into a military situation, whether overtly or covertly, without the approval of Congress. Yet Congress remains unwilling to accept its responsibility for fear of possible political backlash.
Throughout our history, presidents have used military force without the requisite congressional authorization. Indeed, the cold war saw not only a progressive decline in congressional participation in the decision to make a military commitment, but also a new claim by the president that Congress had no legal right to do so, even if it wanted to.
Congress's attempt to quell that claim with the War Powers Resolution has proved completely ineffectual. The law is so full of procedural defects that both the president and Congress have been all too happy to ignore it. Thus, in the roughly two dozen episodes warranting its use since its enactment, Congress has done nothing to challenge the president's claim of inherent power to make war.
As the country uncertainly settles into its largest military commitment since Vietnam, Congress must come to grips with its fundamental constitutional responsibility and find a new way to ensure that we do not go to war, any war, without the public backing of our elected representatives. …