War Powers and the War on Terror

by Sen. Russell Feingold

President Bush used strong rhetoric in his State of the Union address last month to describe our fight against terrorism. But to back that rhetoric with constitutional might, the president must also honor the terms of the War Powers Resolution, which requires the president to do more than outline his global military objectives with tough-talking generalities.

In his State of the Union speech, Mr. Bush raised the ante against Iran, Iraq and North Korea. Some in the Bush administration have suggested that the military campaign may also one day expand to Somalia, or that we may need to move beyond military training in the Philippines. Given the global reach of the terrorism threat, our armed forces may indeed need to broaden their theater of operations. But under our Constitution and the War Powers Resolution, the president and Congress must first agree on any such expanded military engagements.

The president has already shown respect for the War Powers Resolution by asking for the consent of Congress before ordering U.S. military troops into Afghanistan, a constitutionally mandated step that his most recent predecessors ignored. The Joint Resolution adopted by Congress and signed into law by the president last year provides the president with statutory authorization to use all necessary and appropriate force against those responsible for the September 11 atrocities. This includes authority to prevent future attacks by responding with force against any nations, organizations or persons responsible for planning, authorizing, aiding or harboring the terrorists who were responsible.

But to preserve our constitutional framework and the popular resolve that has lent so much to our success to date, the president should acknowledge that the authorization does not give him a blank check. As laudable as it might be for the U.S. to root out all bad actors around the globe, such action is outside the scope of the use-of-force resolution that Congress passed, and beyond our financial means.

The War Powers Resolution recognizes the shared constitutional responsibilities of both the president and the Congress to make critical decisions concerning our military commitments. The Resolution calls for more than a one-time authorization from Congress. By recognizing Congress as custodian of the authority to send our troops into battle, the War Powers Resolution demands regular _ and meaningful _ consultations between the two branches of government to sustain or expand our military engagements.

In dividing war powers authority, the Framers of our Constitution recognized that national unity of purpose would be essential to any war effort, and that our national unity could be strengthened by dispersing authority between the two democratic branches of government. The separation of powers in this area forces us to develop a broad national consensus before placing Americans in harm’s way.

And the effectiveness to date of our military campaign in Afghanistan demonstrates that our nation and our military operate at the zenith of moral, political and military might when they act under constitutional authority and with a defined democratic mandate.

So to honor the War Powers Resolution, the president owes Congress a candid discussion about our long-term plans in the Philippines, and a more detailed explanation of his rationale for focusing America’s attention so pointedly on Iran, Iraq and North Korea in his State of the Union address.

Such dialogue and cooperation preserve our constitutional structure, and increase the moral authority of the president to act forcefully.

Given the unprecedented nature of the threat confronting us, we must ensure our most powerful and constitutionally unified response to the new threats confronting us at home and abroad.

Russell Feingold, Wisconsin Democrat, is a member of the United States Senate.

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