In the years following the Vietnam War and Watergate, Congress passed legislation that sought to rein in an out-of-control executive branch. Some of those solutions have proven effective. Others are abject failures. What seems clear is that Congress should now look at all with a critical eye.
We should start by examining one. In 1973, Congress passed the War Powers Resolution over President Nixon’s veto. The law sought to ensure that abuses of presidential war-making like Vietnam couldn’t happen again. Congress hoped the War Powers Resolution would set a modern process for its right to “declare war” stipulated in the Constitution.
When I entered the Army as a young second-lieutenant in 2010, I never imagined how a Nixonian-era reform could impact me personally. Yet in 2016 I found myself an Army captain serving in the Middle East in a conflict of dubious legal authority. I say dubious because under a fair reading of the 1973 War Powers Resolution, the counter-ISIS war in which I was serving in 2016 was illegal.
The legal justifications issued by the Obama administration make it sound more complex of course, but the fact was that the congressional permission requirement outlined in the War Powers Resolution hadn’t been met. As an officer charged with upholding an oath to the Constitution and following the law, it seemed plain that President Obama alone lacked the authority to order me to Kuwait. But in an act that has echoed since 1973 in other theaters of American conflict, President Obama chose to simply ignore key tenets of the War Powers Resolution. Dismayed by this, I took the only action that I felt available to me; I sued the president.
Ultimately, the lawsuit failed and in the desert I stayed. After 12 months, another officer took my place for his own long tour. And then another. And another. It’s now been over four years since I left Kuwait. My former headquarters is still there, still approving airstrikes in two countries. Four years later, if you’re looking for a face to embody the failure of the War Powers Resolution to achieve what it was designed to do, look my way.
And yet somehow since the failure of my very personal effort to hold the president accountable via the War Powers Act not so long ago, things have gotten even worse. Last year in a rare, hopeful act of bipartisan collaboration, a small group of Republican senators joined the senate Democratic caucus in a vote to end U.S. involvement in the Saudi war in Yemen. But this inspiring moment was cut short by a presidential veto.
What seemed lost on many was the absurdity of it all. The executive branch first entered the U.S. military into involvement in the Saudi-led war in Yemen without congressional consent, despite Congress’s reserved right in the Constitution on such matters. Several years later, both houses of Congress expressed their desire that U.S. involvement end. The president then simply vetoed the bill, knowing the impossibility of a two-thirds majority to override his veto. Despite a large bipartisan consensus in Congress mandating that the president withdraw from an unauthorized conflict, U.S. participation in that conflict continues to this day. The War Powers Resolution failed once again.
Now the country stands at a different precipice. We have an increasingly erratic president, with a history of authorizing dubious military action. I fear every day for my friends serving overseas. With almost 50 years of failure to restrain presidential military action on its resume, the War Powers Resolution provides little comfort.
And yet perhaps we also stand at a moment of opportunity. President-elect Biden has made clear he wants to heal the wounds of the election and the past four years and work with Republicans when possible (to the consternation of some in the progressive wing of the Democratic party). The same band of Republican senators who voted to end the Yemen war will retain their seats next January. If these votes reflect a sincere concern among some Republican senators for a more assertive congressional voice in matters of war, it would seem that with a Democratic president this impetus would only grow stronger. As an added plus for Biden, addressing the issue would have the potential to notch a bipartisan win that skeptical progressive members of his party could cheer: a curtailment of endless war.
So what to do? Congress should throw the last shovelful of dirt on the failed War Powers Resolution and replace it. New legislation should render vague and politically-motivated presidential talk of imminent threats unactionable. It should ban funding for all lethal military action abroad that has either not been approved by Congress, or meets very narrow definitions. Air strikes outside that criteria should be limited to areas where congressionally approved authorizations for the use of military force with strict geography and time limits apply.
Language could be added stating that military leaders should consider executive branch orders contrary to these requirements unlawful, a tenet courts in our country once upheld. Such legislation would represent a return to our Founders’ intent that the decision to go to war be a difficult one. Legislators of both parties can work to craft such a law, offering President Biden a chance to sign bipartisan legislation on Congress’s terms, albeit at the expense of some long-abused presidential power.
Perhaps the nation will be lucky enough to make it through to inauguration with democracy intact and no military crisis abroad. If we prove so lucky, it’s critical that we commit to ending this dangerous status quo that gives such abusable power to one person. We need a new generation of congressional leaders to rise up and reassert the legislative branch’s authority on war powers. Hopefully this time they get it right.
(Shana Marshall)
