pending better evidence than now exists that public judgment is consistently detrimental to the national good and impervious to the persuasion of better advised executive officials. Fourth, to create and maintain national consensus behind American use-offorce policies. Without that consensus, it is difficult for the country effectively to pursue any policy for a significant period of time; and the absence of consensus may plunge the United States into bitter internal controversy, with debilitating effects both internationally and domestically. Fifth, to permit short-term emergency uses of American force that are neither subject to democratic control nor backed by national consensus. Any attempt to absolutize the necessity for democratic control and consensus founders on those occasions when public opinion has been fatally wrong, and when neither government advocacy nor events have yet managed to win tolerance for the necessary policies. The years immediately prior to American entry into World War II speak eloquently about the potential of public judgment for short-term fundamental error. Sixth, to encourage rational use-of-force decision-making. That is, the making of decisions by elected officials who are well acquainted with (a) overall American foreign policy objectives and priorities, (b) the basic facts of the situation at hand, (c) realistic alternatives for dealing with it, (d) expert evaluations (both technical and political) of these alternatives, and (e) criticism of each alternative by persons of genuinely independent judgment and persuasive power. Seventh, to ensure American capacity to consider use-of-force questions and make policy rapidly or secretely, when necessary, and flexibly and proportionately always. The importance of speed and secrecy has been, and will continue to be, crucial in certain circumstances. Flexibility-the capacity to act in a manner responsive to changing events-is vital in an area as volatile and unforgiving of error as that of use of force. The capacity to respond proportionately avoids inadequate or excessive American reaction to foreign provocation. Eighth, to permit continuity in American use-of-force policy, when desirable. Continuity leads to credibility and predictability. Both are necessary to assure allies, deter enemies and to reach agreement with other countries. Ninth, to encourage the periodic review and revision, as necessary, of our useof-force policies. The timely modification or termination of a policy often has an importance equal to its timely initiation. Tenth, to facilitate the efficient making and execution of American use-of-force policy. Government inefficiency during the Revolutionary and Confederation periods provided strong impetus to the constitution-making of 1787-89. Our need for efficiency has increased radically since 1789, with growth in the complexity and magnitude of the problems with which the government must deal, and with tremendous increases in the pace of events. Consistent inefficiency in making and executing decisions can undermine even wise policies. Two very important questions remain even after the basic objectives, or ends. of the allocation of control are known. (1) What are the respective capacities of Congress and the President to achieve each of the ends? (2) If certain ends conflict with one another, and if all of them cannot be directly pursued at once, which ends are to be preferred? 3. Respective Congressional and Executive Capacities to Realize Each of the Desired Ends At issue here are the implications of different institutional characteristics of Congress and the President. What, for example, is the effect on their capacities to achieve the desired ends of their respective terms of office? Of their different modes of election and electoral constituencies? Of the fact that the President is one and Congress many? That only the President is never out of session and never out of contact with the government apparatus? That the President far more than Congress controls the services and day-to-day activities of the overwhelming mass of federal employees? That the executive role is characterized more by recommendation, interpretation and action, and the legislative role more by deliberation, consent and authorization? At issue also is the extent to which either branch can and will alter its present ways of doing business to increase its capacity to realize the desired ends. If such reform is technically and politically feasible, the prospect of its occurring must be taken into account. Congress, for example, could improve the methods by which it now obtains, absorbs and critically considers information essential to use-of-force decisions. It could further coordinate and set priorities for the splintered processes by which it now deals with these decisions. It could provide for their more systematic review and revision. And Congress could significantly improve its capacity for rapid and secret use-of-force decision-making. Assuming, however, that the President's and Congress' institutional capabilities remain essentially as they now are, my conclusion is that the first four ends described above are likely to be most often realized by an allocation of control that requires joint executive-congressional authorization of any initiation of force. In other words, to hinder the use of force to build tyranny at home (end one) or to wage war aggressively abroad (end two), to foster democratic control over use-of-force policy (end three), and to create and maintain national consensus behind that policy (end four), the best allocation of control is one that divides responsibility between the President and Congress. With certain qualifications, however, this is not my conclusion as regards the last six ends described above. They are likely to be realized in more cases than not by an allocation of control that gives the decisive voice to the President, subject to such congressional consultation and support as he may seek, and subject to congressional power to thwart or reverse his decisions through means other than the right to vote yea or nay on the actual initiation of force (for example, the denial of implementing appropriations and legislation, or the use of hearings to inform and arouse the public against executive policy). In other words, to ensure American capacity for short-term, unpopular use of force that is vital to national security (end five), to encourage rational use-of-force decision-making (end six), to ensure American capacity to consider use-of-force questions and make policy rapidly or secretly, when necessary, and flexibly and proportionately always (end seven), to permit continuity in that policy, when desirable (end eight), to ease the periodic review and revision, as necessary, of American use-of-force policies (end nine), and to facilitate the efficient making and execution of those policies (end ten), the best allocation of control is one that allows the President to act as he thinks wisest, without the necessity to obtain congressional approval. This judgment must be qualified in three respects: First, it is not clear that Presidents can consistently obtain from any source but Congress an element of rational decision-making: the criticism of alternative courses of action by persons of genuinely independent judgment and persuasive force (end six-e). Devils-advocate from within the Executive Branch seem all too often to have a modest impact on their leader. Second, it is possible that end nine-the periodic review and revision, as necessary, of use-of-force policies-might be more likely if both Congress and the President were necessarily involved, the one to offset any obsessive preferences of the other for one policy or another. Finally, as noted a moment ago. Congress could alter its ways of doing business so as to narrow significantly the gap between its and the President's institutional capabilities to realize ends five through ten. Thus, the allocational judgment just stated is more tentative than the judgment concerning the first four ends. The conclusions above do not reflect the impact that unusual personalities in either the White House or on the Hill may have on realization of the desired ends. And they do not pretend to apply to all cases, only most cases. What has been said about ends six through ten might well not hold were abnormally wise and strong Congressmen to confront an abnormally foolish and weak President. And certainly there have been, and will be, occasions when Congress rather than the President proves more capable of realizing any of the last six ends. But in most cases (the more relevant subject for consideration), this does not seem to be true. The problem remains how control is to be divided when certain of the allocational objectives call for joint executive-congressional responsibility, while others call for executive prerogative. 4. Preference Among Ends: The Allocation of Control At the outset, it is well to be clear that there is no necessary conflict among the objectives in question. The first four ends may be realized, sooner or later, even if the President alone controls the initiation of force. He may, for example, be scrupulous to avoid aggressive uses of force at home or abroad; he may temper his policy in the fire of congressional and public opinion and successfully build consensus behind it. Similarly, the last six purposes could be achieved even were the President required to obtain congressional approval for the use of force. No iron law compels Congress to vote down unpopular action vital to national security; to reach irrational decisions; to prove incapable of speedy, secret, flexible and proportionate action; to toss aside essential continuity in policy or refuse its review and revision; nor is Congress inexorably doomed to sit astride the efficient making and execution of American policy. But practically speaking, ends one through four do now compete with ends five through ten. For as noted, our chances of realizing the first group are meassurably better if the President and Congress share authority, while our chances of realizing the second set are measurably enhanced by executive prerogative. Which group of ends is to be preferred in the allocation of control over the initiation of force? In my judgment, neither group is dominant except as to the time of preference during the process of initiating force. Three stages are important during that process: First, at the outset of initiation, realization of ends five through ten should dominate. In other words, we should concede the President a constitutional prerogative to initiate the use of force when he deems it in the national interest. To that extent, we should recognize as amendment by usage executive practice during this century, especially during the last thirty years. Second, however, immediately after the President has unilaterally begun the use of force, our dominant concern should become realization of ends one through four. In other words, we should preserve from the Framers' intent and nineteenthcentury practice two congressional prerogatives: (1) the constitutional right to be promptly informed by the President that he has begun the use of force; and (2) the constitutional right, then or at any time thereafter, to limit or terminate that use of force by majority vote of both Houses. These rights should come into play irrespective of the reason that the President initiated the use of force. For example, Congress should not be denied the report and a timely opportunity to act just because the President is, or claims to be, engaged in response to an attack on American territory or security interests. But any congressional resolution that a use of force be limited or ended, of course, must not infringe the Executive's control as Commander-in-Chief over military tactics or the safe withdrawal of committed units. It is doubtful, too, that Congress could constitutionally order the President to limit or cease military operations essential to the direct defense of American territory. Third, pending such time as both Houses vote to limit or terminate the President's use of force, his prerogative to wage war as he deems in the national interest should continue. Congress may fail to vote yea or nay for many reasons other than to realize ends one through four. Thus to permit Congress to pocket veto presidential use of force would risk frustration of ends five through ten for frivolous reasons. This is an appropriate time to note a fourth allocational rule: the President, of course, should retain his absolute constitutional prerogative to use force when it involves little human or economic cost to this country and when it does not infringe the sovereignty of any other state. Executive use of American planes in 1964 to help Belgium paratroops rescue whites trapped by rebellious elements in the Congo, with the permission of the Congolese government, provides an apt instance of this prerogative. Occasions for executive action of this sort, however, are significantly less extensive now than during the nineteenth century, both because of the absence of stateless but inhabited territory in today's world and because of today's more stringent international rules against landing troops in, or taking reprisals against, any state, no matter how weak or uncouth. 5. Reasons for the Allocation of Control Just Described Why should the President have a constitutional prerogative to initiate force, and to continue it as he thinks best, so long as Congress fails to vote to the contrary? Because ends five through ten are more important to the country today than was the case in the late eighteenth and nineteenth centuries. First, international events arise, progress and alter their complexion much more rapidly now than they did then. Thus there is a premium on the government's capacity to respond quickly, flexibly and proportionately to emerging developments. Second, international events today are far more complex than before, both in themselves and in their relation to other aspects of reality. It is increasingly important, accordingly, that the government take the steps required for coordinated, informed, expert and critical decisionmaing, as outlined in end six above. 93-626-73-16 Finally, international life is far more hazardous for the United States than ever before. True, during the first generation under the Constitution, this country suffered the tribulations of a small, weak nation caught up, if only at a distance, in the wars of the prevailing superpowers. But even during that period, the United States was protected by geography, the modest state of existing military technology and the slight American interdependence with the rest of the world. During most of the nineteenth century, the country was further sheltered from international dangers and burdens by a European balance of power, for whose workings it had no direct responsibility. Thus, American government rarely then confronted the possibility that an unpopular or secret use of force might be vital to national security. It did not face the necessity to make use-of-force policy, including commitments to other countries, on whose credibility and predictability American security and world order would depend to a measurable degree. And the rational review and revision of our use-of-force policy, as well as its efficient making and execution, had a second-order importance akin to that of the policy itself. For familiar reasons, none of these happy circumstances exists today. In short, we live in a more fast-moving, complex and dangerous international world than existed before this century. We do not enjoy the peaceful isolation that the Framers expected or that the country in fact enjoyed during much of the nineteenth century. The changed needs of the United States call for greater presidential control over the use of force than existed prior to 1900, because the Presidency is institutionally more capable than Congress of realizing ends five through ten. It is doubtful, moreover, that any person capable of election as Chief Executive for the foreseeable future would accept a use-of-force prerogative more narrow than the one described. As has been the case with rare exception during this century, Presidents are likely to continue to initiate force on their own authority whenever they believe it essential to the physical protection of American citizens or military units abroad or to the defense of national security. To persuade contemporary Presidents (a) to report meaningfully to Congress immediately after initiating force, and then (b) to accept congressional limitations on, or termination of, that force, should they be voted, is the greatest rollback in recent executive practice that realistically can be made, in my judgment. Why is even that rollback desirable, in light of existing international circumstances? Because ends one through four remain at least as important to the country as they have ever been, and because Congress is best positioned to restrain or curb a President who, through malice or incompetence, fails himself to realize them. A bona fide, constitutionally guaranteed opportunity for Congress to express its views on significant initiations of force is the best means to ensure that the President does not use foreign war as a route to tyranny at home; that he does not act aggressively abroad with unpredictable and potentially catastrophic consequences; that he does not obstruct and ignore the development of majority sentiment after he and events have had an opportunity to shape it; and that he does not persistently act unsupported by national consensus, essential to avoid debilitating controversy over policy. Congressional involvement is important also as more than a failsafe against executive error. Though the President may have a comparative advantage in the realization of ends five through ten, Congress too can contribute significantly to them. Two of the most important areas for legislative contribution have already been suggested: (a) the critical scrutiny of executive policy to expose both its weaknesses and the merit of alternatives, and (b) the impetus to review and revision of executive policies that have outlived their usefulness. If the allocation of control described above were to become American practice, there would be great pressure on the President to involve Congress in the useof-force decision-making process before, not after, the commitment of the military. With the chilling awareness that he must report any use of force to Congress and then risk limitation or termination by majority vote of both Houses, the President would be driven to seek either the fact or high probability of congressional approval before acting himself. Such executive-legislative consultation and collaboration, through channels now already in existence, would constitute the war-powers millennium. Thus, as a matter of practical politics, the President would be likely to present congressmen with use-of-force faits accomplis only when, in his judgment, immediate or secret action was essential to the physical protection of American citizens or military units abroad, or to the defense of national security. Should the allocation of control described above satisfy devotees of presidential prerogative traumatized by what Congress did, and would have done given the opportunity, to Franklin Roosevelt before the Second World War? Or, on the other hand, should it satisfy devotees of congressional prerogative traumatized by what Presidents Johnson and Nixon, in particular, did to Congress in Indochina? Very probably not, for their positions rest on certain inescapable dilemmas. Roosevelt, had he been forced candidly to report to Congress and seek its approval, might well not have been able to take steps vital to American security. And the Johnson-Nixon buffetings of Congress over Indochina make clear congressional disarray in the face of executive faits accomplis. In other words, there is no avoiding the fact that, given an opportunity to decide, Congress may make disastrously poor judgments, or the fact that the President, given an opportunity to shape events before seeking congressional views, may notably narrow the legislators' decision-making freedom. The problem symbolized by prewar Roosevelt is the more acute, in my view; it would be less easy for a President to evade an explicit congressional denial of authority than for Congress to negate a presidential fait accompli. Four mitigating considerations exist, however. First, Congress has grown in foreignaffairs wisdom since the 1930's and has the capacity to take significantly greater strides in that direction. Second, a President believing force vital to the national interest may always act under the allocation noted above and then rely on the persuasive power of his office and events to win either congressional approval or inaction. Third, in times of national emergency Presidents have acted beyond their constitutional powers, as then understood, and presumably would do so again. Fourth, to read Congress out of our constitutional process for initiating force, let it do to later Presidents what it did to Roosevelt, would obliterate one evil while ignoring the other president fallibility, against which Congress is our best defense. II. WAR-POWERS LEGISLATION IN LIGHT OF RELEVANT CONSTITUTIONAL A. Recapitulation of Constitutional Considerations Reiterated in skeletal form, these are the constitutional considerations that in my view must be taken into account by any war-powers legislation. First, constitutional law governing the allocation of control between the President and Congress over the use of force is presently uncertain and in flux. Belief that the President has a constitutional prerogative to use force as he thinks necessary in the national interest now hotly contends with belief that he may do so only after obtaining prior congressional approval, except in a few emergency circumstances and then often for only a limited time, unless ex post facto congressional approval is forthcoming. The former belief springs from twentieth-century executive practice, especially that of the Cold War; the latter belief is rooted in the Framers' intent and in nineteenth-century practice. Second, present constitutional confusion cannot be ended by invocation of the Framers' expectations as holy writ, nor by automatic canonization of recent executive hegemony as amendment by usage. An end to confusion more consistent with our constitutional tradition involves, first, identification of the ends that the country seeks to achieve by the nature of its allocation of control between the President and Congress, and, second, a constitutional division of authority between them that is most likely to realize those ends in today's world. Third, the allocation of control that most realizes those ends, in my judgment, is one that involves less control for Congress than the Framers intended, but also less control for the President than most Chief Executives in this century have claimed: 1. Presidential Prerogative We should constitutionally concede to the President the right to initiate force on his own authority, whenever he thinks it necessary in the national interest. We should further concede him the right to continue any use of force as he thinks necessary, so long as a majority of both houses of Congress do not vote to limit or terminate that use. Finally, we should recognize, as was the case in the nineteenth century, that some uses of force do not amount to “war” in the constitutional sense, and leave them wholly within presidential control; these uses involve applications of force that have little human or economic cost for this country and do not impair the sovereignty of another country, under current concepts of international law. |