This article originally provided by The New York Times

October 31, 2005

Op-Ed Contributor

War Powers in the Age of Terror

Boston

WHEN senators this month asked Secretary of State Condoleezza Rice about possible military action against Syria or Iran, she recited the administration's standard response: all options remain "on the table." Pressed on whether any such action might require congressional authorization, Ms. Rice demurred. "I don't want to try and circumscribe presidential war powers," she said, adding that "the president retains those powers in the war on terrorism and in the war in Iraq."

Although Ms. Rice's evasion exhausted the committee's attention span, the war powers issue cries out for attention. In a post-9/11 world, what limits - if any - exist on the president's authority to use force?

The Constitution addresses the matter with apparent clarity. Article I, Section 8 assigns to Congress the authority "to declare war." After 1945, however, the perceived imperatives of waging the cold war all but nullified this provision. When it came to using force, presidents exercised wide discretion, ordering American troops into action and notifying Congress after the fact. The legislative branch no longer "declared" war; at most, it issued blank checks that the White House cashed at its convenience. Occasional efforts to constrain presidential freedom of action, like the Vietnam-inspired War Powers Resolution of 1973, accomplished little.

After 9/11, the Bush administration wasted little time in expanding executive prerogatives even further. Acting in his capacity as commander in chief, President Bush committed the nation to open-ended war on a global scale. Concluding that eradicating terrorism meant going permanently on the offensive, he promulgated a doctrine of preventive war. Finding that Saddam Hussein posed a clear and present danger, he moved to put this Bush Doctrine into effect in Iraq.

On Capitol Hill, the response to this sweeping assertion of presidential authority fell somewhere between somnolent and supine. With the administration gearing up to invade Iraq, the Congress roused itself just long enough to instruct the president in October 2002 to "defend the national security of the United States against the continuing threat posed by Iraq." As Lyndon Johnson did with the Tonkin Gulf Resolution of 1964, Mr. Bush interpreted this as a mandate to wage war however he saw fit, an interpretation that Secretary Rice has now reaffirmed.

Yet the brief history of America's global war on terrorism demonstrates the folly of allowing the executive branch a free hand in determining the scope and conduct of that conflict. Deference to Mr. Bush's fixation with Saddam Hussein has cost the United States dearly. To expand that misadventure will only drive those costs higher. Furthermore, an attack on either Syria or Iran, launched merely on the president's say-so, would produce a profound reaction, in all likelihood surpassing that induced by Richard Nixon's 1970 incursion into Cambodia.

In the interests of national security, earlier generations endowed whoever happened to occupy the Oval Office with the authority to unleash Armageddon. The perceived urgency of the Soviet threat took precedence over constitutional scruples. Deterring yesterday's enemy meant being able to wage war in an instant, with one man issuing the orders.

But defeating today's jihadists, who are unlikely to be impressed by the prospect of incineration, requires a different strategy. Victory will come when we have deprived violent radical Islam of its claim to legitimacy. Incorporating military power into that effort will require prudence - we have seen the consequences that rashness can produce. Hardly less important, sustaining military commitments once undertaken will demand a national consensus, which existed after 9/11 but which the present administration has since squandered.

In the interests of national security today, we should curb presidential war-making powers. A hitherto compliant Congress must reclaim the institutional authority conferred upon it by the Constitution. When it comes to wars, the first responsibility of the legislative branch is not to support the commander in chief. It is to exercise independent judgment, an obligation that transcends party. Members of Congress who lack the wit or the moral courage to fulfill this obligation ought to be held accountable by voters.