The release of the white paper justifying the Obama administration's targeted killings program—as well as the confirmation hearings for President Obama's CIA nominee John Brennan—has brought attention back to the role the executive branch plays in the abuses and overreaching that have come to define the "War on Terror." This is how it should be. While the president's power over domestic policy tends to be overrated, the president is the dominant force in military affairs.
It's also true that Congress shouldn't be left off the hook. The legislative branch has substantial constitutional authority over military affairs. In the case of the War on Terror, Congress has repeatedly deferred to the White House, starting with the extremely broad Authorization for Use of Military Force against al-Qaeda in 2001. While the targeted killings memo did cite the president's Article II powers to defend the country, the most commonly cited authority for the administration's targeted killing program was the AUMF. This is far from the only example of Congress's deference in the "War on Terror." Congress responded to the illegal warrantless wiretapping of the Bush administration by passing a new Foreign Intelligence Surveillance Act that gave the executive more authority to engage in warrantless wiretapping while retroactively immunizing corporations who violated the rights of their customers. This new, weaker FISA was renewed by large, bipartisan majorities in December 2012.
In addition to the ongoing refusal to reconsider the 2001 AUMF—a grant of authority that seems unnecessarily broad a decade later—President Obama's use of force against Libya shows the extent to which Congress has abdicated its responsibility. The airstikes did not conform even to the relatively weak requirements of the War Powers Resolution, which attempted to restore some balance between the branches in the wake of the disastrous Vietnam War. The resolution was designed for a very different context but has not been modified since 1973. Even though Republicans controlled the House of Representatives during the Libya air strikes, Congress allowed this violation of the law to occur with barely a whimper. It is unlikely that Congress will act to strengthen the War Powers Resolution when its members are unwilling to make any serious effort to enforce the already existing one.
Congress certainly has the ability to change these statutes and assert more authority over military affairs. The War Powers Resolution permits the president to initiate the use of military force, but requires him to obtain congressional approval within 60 days. This has been ineffective, however, because once troops have been committed, Congress is unlikely to refuse to authorize the use of force within such a short time frame. One potential change, based on Bruce Ackerman's proposal concerning emergency powers, would require multiple votes, perhaps with escalating supermajorities required. At a minimum, this would bring more public attention to uses of force and require Congress to take more responsibility.
The War Powers Resolution is irrelevant when it comes to drone strikes right now, thanks to the 2001 AUMF. At a minimum, Congress should narrow the potential range of targets, requiring evidence that a suspected terrorist poses a real threat to the United States and cannot be feasibly captured to be presented to an independent tribunal. Granting the president the same kind of powers with respect to the War On Terror that he has with respect to an ordinary military conflict doesn't work well, because the "war" has no formal way of being ended and the whole world can be a battlefield.
Will Congress reassert its authority? It seems very unlikely. "Congress has never shown an interest in curbing the use of force or limiting the resources at a president's disposal in an ongoing conflict," says Andrew Polsky, author of Elusive Victories, a valuable new history of presidential war powers. "Simply put, lawmakers do not want ownership of a war, especially one that isn't going well." Because wars tend to cause the public to rally around the president at the beginning, but also tend to lose popularity the longer they continue, Congress has little incentive to check presidential war powers at any stage of the process.
The Framers believed that the branches of government would jealously guard their powers: "Ambition must be made to counteract ambition," Madison famously argued in Federalist #51. But it doesn't always work out that way. Or, more precisely, political ambition sometimes compels legislators to delegate responsibility for difficult choices to the other branches. The distribution of war powers has become imbalanced, but not so much because the president has "usurped" congressional authority as that Congress has happily abdicated its proper role. The public needs to start blaming both parties in Congress as well as the White House for abuses in the War on Terror. Until it does, Congress is likely to continue passing the buck.
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