How Two Senators Want To Change The Way The U.S. Wages War

CREDIT: AP Photo/U.S. Navy photo by Mass Communication Specialist 3rd Class Jonathan Sunderman/HO)

In the aftermath of last year’s aborted military campaign against Syria, two senators want to rewrite the rules that have — in theory at least — governed the way the United States has used military force for the last forty years.

Following the chemical attack in Syria that killed hundreds, the United States for a time seemed on the verge of launching military action against Syria to punish its unleashing of such deadly weapons. That original determination to retaliate against Syria for crossing President Obama’s so-called “red-line” in turn launched a debate over whether the president had the authority to take such action without Congressional approval. That’s where the recently introduced War Powers Consultation Act comes in.

The new legislation — which Sens. Tim Kaine (D-VA) and John McCain (R-AZ) introduced on Thursday — would replace the War Powers Act of 1973 in its entirely, enacting a new set of rules to, in the senators belief, better keep the president accountable when it comes to the use of force. Rather than only having to notify Congress after launching military action, Kaine and McCain want the force presidents to consult with legislators prior to sending U.S. soldiers, sailors, and pilots into harm’s way.

Under current law, the president has to notify Congress whenever placing forces in areas where “imminent” hostilities are likely, and is given a sixty-day window to conduct the operation absent Congressional approval and another thirty-days allotted towards withdrawal. The new proposal would reduce that autonomy, requiring the Executive Branch to “consult with Congress before ordering deployment into a ‘significant armed conflict,’ or, combat operations lasting, or expected to last, more than seven days.”

That provision would exclude humanitarian missions and covert operations, and the initial consultation could be deferred in time of emergency, but must take place within three days after. The legislation would also raise a new joint committee composed of the heads of the Armed Services, Foreign Relations, Intelligence, and Appropriations in both Houses of Congress “to ensure there is a timely exchange of views between the legislative and executive branches, not just notification by the executive.”

Finally, the law, if passed and signed, would require a vote in Congress in support of or against any military operation within 30 days. “Under the Act, all Members of Congress would eventually be asked to vote on decisions of war in order to ensure a deliberate public discussion in the full view of the American public, increasing the knowledge of the population and the accountability of our elected officials,” a press release announcing the legislation reads.

“I came to the Senate … with a number of passions and things I hoped to do, but I think I only came with one obsession, and this is that obsession,” Kaine said on the Senate floor when introducing the bill. “I do not think there is anything more important than — than the Senate and Congress can do than to be on the board on decisions about whether or not we initiate military action, because if we don’t, we are asking young men and women to fight and potentially give their lives, with us not having done the hard work of creating the political consensus to support them.”

For now, the White House has yet to take a public stance on how it views McCain and Kaine’s legislation. “The Administration is reviewing the legislation and we will continue to work closely with Congress on matters associated with the use of U.S. military force,” National Security Council spokesperson Caitlin Hayden said in an email to ThinkProgress. Neither senator’s office responded to inquires as to whether the White House was consulted in drafting the bil.

The actual efficacy of the original War Powers Resolution has been under debate since Congress overrode President Richard Nixon’s veto to enact the bill. So far, the War Powers Resolution has never been successfully cited to end a single combat operation and no presidential administration since it came into effect has ever outright accepted its constitutionality. The courts have given little guidance on the matter, as they have refused to take cases given they view Congress as lacking standing to sue over the matter.

That poor track record is what led the University of Virginia’s Miller Center to convene the National War Powers Commission in 2007. Former Secretaries of State James Baker III and Warren Christopher, who served under George H.W. Bush and Bill Clinton respectively, led the panel to its conclusions, which included recommendations largely mirrored in McCain and Kaine’s legislation. “When it comes to war, Americans deserve better than a law that is ineffective and ignored,” the two argued in a New York Times op-ed soon after their recommendations were released. “They deserve a law that will encourage future presidents and Congresses to work together to protect our nation.”

During the 2008 presidential race, then-Senator Obama’s campaign was decidedly non-committal about the proposal. “Senator Obama commends this bipartisan study for advocating that the President consult Congress more closely on issues of critical national importance like the use of military force,” said Obama spokesman Nick Shapiro at the time. President-elect Obama’s meeting with Baker and Christopher was likewise vague in its results on how he viewed the proposed bill.

“Their conversation covered a range of important topics, including the recent study on war powers co-chaired by Secretaries Baker and Christopher,” Denis McDonough, then a foreign policy advisor, now White House Chief of Staff, said in a statement after the meeting. “President-elect Obama expressed his appreciation for their work and said he would review the Commission’s proposal.”