War powers

In response to the inability of Congress to prevent the President from duping it into going to war, some graybeards have decided to do a study of the effectiveness of the War Powers Resolution:

In a report released on Tuesday, the study group concluded that the 1973 law, which is known as the War Powers Resolution and was adopted in the wake of American involvement in the Vietnam War, was lacking in a number of regards.

For one thing, the authors said, it allows the president to wage war without any Congressional consultation or approval for up to 90 days. It sets forth conditions under which a president can commit troops, including an unspecified “national emergency,” but provides no mechanism for Congress to enforce its provisions. It also requires the president to report periodically on the progress of any conflicts, a provision that has been regularly ignored.

Many scholars consider parts of the resolution unconstitutional, including the requirement that military action be ended within 90 days unless Congress specifically authorizes it.

The study group recommends a slightly different set of conditions and duties to impose on the Executive branch, but even they admit that such tweaks are small potatoes. Says group member Lee Hamilton: “Presidents will do what they want to do, and they have the constitutional power to do it. What we hoped to ensure is that they hear other points of view before they do." In other words, the President must have Congress over for tea before he starts a war--not exactly the kind of oversight that's going to prevent another Iraq War.

The thing is, so long as the President has control over the intelligence, the President has control over war powers. As we saw during the run-up to the Iraq invasion, the President has a more or less free hand in determining which data is released to the public and which data is kept secret (secret, even, from most of Congress). The upshot of this is that the President can manipulate intelligence to generate a false empirical justification for virtually any war action he feels like taking. Of course, such misbehavior can eventually be uncovered by a diligent, subpoena-issuing Congress--but by that time, the war will have already started.

What is needed is not Constitutionally questionable limits on the President's war powers, per se, but a serious overhaul of how military intelligence is to be shared amongst the political branches and with the public. The current system that allows de facto arbitrary classification and declassification of intelligence by a single elected official has failed spectacularly, and there is no reason to think it will not fail again. Simply put, it concentrates too much power in the hands of a single individual.