Tuesday, July 08, 2008

New war law?

According to the Christian Science Monitor, the American people's assessment of Congress is plummeting faster than the fuel gage on an H2 Hummer. Here's a pull quote:
A recent Gallup Poll confirms what many lawmakers say they're hearing from their constituents: that confidence in Congress has never been lower. Only 12 percent of Americans say they have a "great deal" or "quite a lot" of confidence in Congress as an institution – the lowest level ever for any US institution since Gallup began asking the question 35 years ago. Congressional job approval, a slightly different question, has dropped to 18 percent.
This raises a number of interesting questions, not least in view of the fact that both of our choices for POTUS no. 44 currently list "Senator" as their employer on their Facebook profiles.

It's from this angle that I would like to suggest we need to approach the proposal published in the NYT (and reported on by CNN) by former secretaries of state James Baker III and Warren Christopher, that "the next time the president goes to war, Congress should be required to say whether it agrees." On the surface this seems like a potentially effective solution to the problems that have arisen since the 2002–2003 consultations regarding Iraq in the months building up to the invasion and the plight of the Democratic majority to force the President to end the war since November 2006.

But this only seems to be the solution. The fundamentally reactive procedures motivating most legislative action, not least since September 2001, have consistently demonstrated themselves to be ineffectual for anticipating and preparing for the needs of the future. Examples could be cited (from banning finger nail clippers from commercial air travel to calls for the dissolution of the Electoral College in presidential politics). But beyond empirical arguments, this proposal suffers philosophical flaws, namely, by assuming that the best way to address problems with the [mis]application of existing laws is to pass new laws.

The American Constitution already makes provision for the waging of war, which is certainly not surprising in light of the recent experiences with the British Empire and a continuing political environment that would eventually erupt in the War of 1812. According to that document, Congress has the authority to wage war granted to them in the following: The Congress shall have Power
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water (U.S. Constitution, Article I, Section 8, Clause 11)
Of course, that same document also bestows certain rights and responsibilities on the President, notably,
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States (U.S. Constitution, Article II, Section 2)
This latter clause has been used to justify presidential powers to initiate military action in the case of attacks against the United States, but, as current political discourse and debate makes clear, the distinction between offensive and defensive military action isn't always so clear cut.

What is more, the War Powers Resolution (passed 1973) already provides for "initial and regular consultations" between the President and Congress whenever American troops are or imminently may be involved in hostile actions. Interestingly, this is precisely what Baker and Christopher hope to achieve with their current proposal, which (according to CNN)
would create a new consultative process between the White House and Congress to help prevent a potential constitutional showdown.
One wonders what is "new" about the proposed "consultative process" and how it will succeed in light of the [apparent] breakdown of existing "consultative process[es]" legislated in 1973.

All of this means that there is already substantial and, I would suggest, adequate provision for the political requirements for the waging of war. If there were problems with the processes which led to the most current instances of armed conflict (and this is a matter of debate; even more so is the question of which problems these are) these need to be addressed within the constitutional and legislative framework already in place. In light of the President's woeful performance numbers and the (somehow) even more woeful approval ratings of Congress, one cannot help but suspect that the current proposal addresses political rather than actual problems.

If Baker and Christopher (and others) want to be more productive, they would be well-advised to examine why the current framework didn't achieve the goals for which it was developed. The current proposal, which will undoubtedly be popular for political reasons, will only succeed in helping us to feel like we've solved a real problem. That is, until the next time we face the same problem. Then someone will propose new legislative solutions that provide for yet more "new consultative process[es]" in the procedures for going to war.

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