Gary M. Stern and Morton H. Halperin
This book has explored the range of constraints that the government faces when contemplating the use of military or paramilitary force. The first nine chapters delineate the various legal requirements that must, or should, be met to satisfy the constitutional proscriptions on the use of force--e.g., the Constitution itself, "customary national security law," statutes such as the War Powers Resolution, treaties such as the U.N. Charter, international law, and the courts. The anomalies of covert action, in particular what have now become "overt-covert" paramilitary actions, also come under scrutiny within the war powers rubric.
The authors of these chapters also address essentially legal reforms within the context of each topic. Raven-Hansen, for example, sees the development of a "customary" war power based on "executive practice" and "knowing congressional acquiescence" as adequately satisfying the legal requirements for certain limited military deployments. Collier contemplates a number of amendments to the War Powers Resolution that would serve to bolster congressional participation in the process. Stromseth calls for the fulfillment of the "contracts" between member nations that were originally envisioned under the U.N. Charter. Lobel looks for a greater constitutional commitment to abide by international law through a requirement of joint congressional and presidential concurrence.
Koh recommends legislation to allow any Member of Congress to file suit to enforce the War Powers Resolution (or any successor, as well as, assumedly, the Constitution) against presidential noncompliance. Treverton calls for a further strengthening of the Intelligence Oversight Act to ensure prior congressional involvement in the conduct of covert operations. In focusing on "covert" paramilitary actions, we propose a melding of the Intelligence Oversight Act and the War Powers Resolution to incorporate such activities into the legal war powers framework. John Norton Moore argues for establishing unilateral authority in the President to take emergency or immediate actions, with major checks reserved to the Congress to deal with long-term engagements.
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