RYDER and HAYDEN: Importance of the War Powers Resolution

November 10, 2014
Paul Ryder and Tom Hayden

[Research by Paul Ryder]

The nation needs a full public debate and a Congressional vote on whether to authorize the current American military interventions in Iraq and Syria and, if so, under what conditions. The past is prologue:

April 4, 1956: President Dwight Eisenhower’s news conference --

Q: Sarah McClendon, El Paso Times: Sir, would you order those Marines that were sent over to the Mediterranean and over in that area, would you order them to war, without asking the Congress first?

A: President Eisenhower: I get discouraged sometimes here. I have announced time and time and time again I will never be guilty of any kind of action that can be interpreted as war until the Congress, which has the Constitutional authority, says so.

Now, I have said this so often that it seems to me almost ridiculous to ask me the question. Look, how can a war be conducted? You’ve got to have troops, you have got to have draft laws, you have got to have money. How could you conduct a war without Congress? Their Constitutional power is to declare war, and I am going to observe it.

Now, there are times when troops, to defend themselves, may have to, you might say, undertake local warlike acts, but that is not the declaration of war, and that is not going to war, and I am not going to order any troops into anything that can be interpreted as war, until Congress directs it.[1]

One of the hard-earned lessons of the Vietnam War is that Congress must not cede to the White House its constitutional power to declare war.

This lesson became law in the form of the 1973 War Powers Resolution. With a new war starting in the Middle East, Congress must now invoke this law.  

1. Why bring up Vietnam?

Since no two wars are the same, the new war is not the same as Vietnam. The similarities, however, are so haunting they are already being discussed across the board. Here is a selection of recent articles:

  • “Formula For Defeating ISIS Evokes Memories Of Vietnam Nightmare,” Donald Kirk, Forbes, September 13, 2014
  • “ISIS and Vietnam,” Thomas Friedman, New York Times, October 28, 2014
  • “Obama echoes LBJ on Vietnam,” Bruce Fein, Washington Times, September 21, 2014
  • “ISIS: Obama’s Vietnam?” David Seaton, Fire Dog Lake, October 12, 2014
  • “The Iraq/ISIS Debate: Beware the Ghosts of Saigon and Karbala,” The National Interest, July 10, 2014
  • “Ellsberg Sees Vietnam-Like Risks in ISIS War,” Barbara Koeppel, Consortium News, October 1, 2014
  • “McCain: ‘Incremental’ Strikes on ISIS Remind Me of Vietnam,” Brendan Bordelon, National Review, October 6, 2014
  • “Vietnam v. Iraq: Suicide attacks changed everything,” The Economist, September 11, 2014
  • “As U.S. Bombs Fall, British Hostage of ISIS Warns of Another Vietnam,” Rukmini Callimachi, New York Times, September 22, 2014
  • “Pentagon official: The Similarities Between Obama’s ISIS and Kennedy’s Vietnam Are Eerie,” Joseph Miller, Daily Caller, October 13, 2014

Like it or not, Vietnam is back. We all need to know what happened and what it means.

Today, Congress is hampered in this discussion by the loss of its institutional memory of Vietnam. No one currently in the U.S. Senate was in office in 1973 when the War Powers Resolution passed.[2] Only four current members of the U.S. House were then serving: John Dingell of Michigan, who retires in January 2015, John Conyers of Michigan, Charles Rangel of New York, and Don Young of Alaska.[3]  

So, too, with the public: most Americans now living had not been born when the War Powers Resolution became 50 U.S. Code Chapter 33.[4]  

2. The Constitution and the Vietnam War

In 1787, the Founders made the Constitution as clear as they could about the matter: “The Congress shall have power to . . . declare war.”[5]

Over the next 155 years, Congress passed eleven U.S. declarations of war authorizing five wars: the War of 1812, U.S.-Mexican War, Spanish-American War, World War I, and World War II.[6] [7]

President Harry Truman used the resolutions of the new United Nations as the legal basis for the Korean War, but the modern pattern for riding roughshod over Congress was set by President Lyndon Johnson. 

The 1964 Tonkin Gulf “Incident” had four now-familiar stages.

Stage 1. The pretext, sometimes fictitious 

The Tonkin Resolution was based on President Johnson’s assertion in a nationally televised speech that North Vietnam had committed an “outrage” through repeated acts of “open aggression on the high seas” against U.S. warships.[8] Even before the speech, U.S. officials on the scene doubted the story.

Capt. John Herrick, in command of the two destroyers, sent messages that ‘freak weather effects on radar and overeager sonar operators may have accounted for the reports’ of the attack.[9]

One of the Navy pilots flying overhead that night was squadron commander James Stockdale, who gained fame later as a POW and then Ross Perot's vice presidential candidate. ‘I had the best seat in the house to watch that event,’ recalled Stockdale a few years ago, ‘and our destroyers were just shooting at phantom targets — there were no PT boats there . . . There was nothing there but black water and American fire power.’[10]

Days after the resolution passed it became clear the events had been fabricated or imagined. Johnson himself told aides, “Hell, those dumb, stupid sailors were just shooting at flying fish!”[11]

Stage 2. The legislative stampede

The Tonkin Gulf Resolution passed the House, 416-0, after only forty minutes' consideration, and passed the Senate, 88-2, after only ten hours. 

During the 1964 debate on the [Tonkin Gulf] resolution, [Sen. J. William] Fulbright said in reply to [Sen. Gaylord] Nelson that although he thought it would be ‘very unwise under any circumstances to put a large army on the Asian continent,’ he did not know what the limits were of the action that could be taken under the terms of the resolution.

. . . In a private conversation, Fulbright told Nelson, according to an account by Senator (George) McGovern, who was present, that the resolution was ‘harmless’ – ‘that we had to help (President Lyndon) Johnson against (Republican presidential nominee Senator Barry) Goldwater. We were just backing the President on his Tonkin response, not giving him a blank check for war.’[12]

When this conversation occurred in August 1964, LBJ was leading Goldwater 65% to 29% in the Gallup poll. Nelson voted yes.

Stage 3. The White House cashes the blank check

Using the Tonkin Gulf Resolution as his authority, Johnson quickly turned Vietnam into a major war, boosting the number of U.S. forces in Vietnam from 23,300 in 1964 to 184,300 in 1965 and then 385,300 in 1966.[13]

Stage 4. The legislators’ regret 

Senator Nelson may have been the first Senator to regret what he had done, but there were many more, including sponsor Senator Fulbright himself. By 1966, the Foreign Relations Committee Chair had become so disgusted by what had come from the Resolution that he gave a blistering set of talks, now known as the “Arrogance of Power” speeches, against the war. 

Congress finally repealed the Tonkin Gulf Resolution, attaching the measure to a Foreign Military Sales Act. President Nixon signed the Act in January 1971. Congress also began considering and acting on a long series of measures to stop funding for the war.

To recover accountability, in 1973 Congress passed the War Powers Resolution over President Nixon’s veto. Under it, the President has forty-eight hours to explain his initiation of military action, and must withdraw forces within sixty days, unless Congress declares war, enacts a specific authorization, or extends the sixty-day period.

The War Powers Resolution was a singular achievement for democracy. The Resolution is not perfect, but far superior to unchecked executive power. It is a way to follow the wisdom of constitutional scholar John Hart Ely, who wrote, “The nation shouldn’t be permitted to ‘slide into’ war: An unambiguous in-or-out vote should be required at the outset.”[14]

3. The pattern continues

Unfortunately, without Congress and the courts insisting the War Powers Resolution be obeyed, subsequent president shave repeated the four-stage pattern set by President Johnson.

For example, after September 11, 2001, the White House used the attacks as a pretext to launch a war against Afghanistan, a country that was not responsible for the attacks. With emotions running high, Congress convened to quickly pass a blank check for President George Bush to wage war at will. Two years later, in 2003, the Administration used non-existent “weapons of mass destruction” in Iraq as a pretext to invade that country as well, and the pattern was repeated. Years later, many Senators and Representatives wondered how they had come to vote for these two wars.

4. The Vietnam War shows why Congress needs to decide on going to war

You don’t ask people to sacrifice their lives until the nation has debated and committed to the mission. It’s immoral.

            -- Sen. Tim Kaine of Virginia[15]

Whether or not to go to war -- or to end a misbegotten war -- is the most important single decision a government can make. A democracy must find a way to make the White House and the Pentagon accountable to citizens who would have to kill and die and pay for the war.

Voting in presidential elections alone does not provide this accountability. 

During the Vietnam War, for example, Americans voted for presidents three times after President John Kennedy began introducing advisers in 1962.  

In 1964, voters overwhelmingly elected Lyndon Johnson, who pledged, “We seek no wider war.”[16] As described above, within a year of being elected, Johnson had increased U.S. forces in Vietnam eight-fold. 

In 1968, voters elected Richard Nixon, who promised “peace with honor.”[17] In his acceptance speech at the Republican convention, he said, “I pledge to you tonight that the first priority foreign policy objective of our next Administration will be to bring an honorable end to the war in Vietnam.”[18] Once elected, Nixon continued the war for the entire length of his first term. During this period, 21,126 U.S. soldiers -- and many more Vietnamese, Cambodian, and Laotian soldiers and civilians -- were killed.[19]

In 1972, voters re-elected Richard Nixon on the word of National Security Advisor Henry Kissinger that “Peace is at hand.”[20] The month after the election, Nixon launched the massive Christmas bombing of Hanoi and Haiphong. U.S. B-52 bombers used indiscriminate “carpet bombing” to flatten everything in their paths. This practice is explicitly outlawed under the Geneva Conventions: 

Area bombardments and other indiscriminate attacks are forbidden. If it becomes apparent that an objective is not a military one, or if an attack is expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects then the attack must be canceled or suspended. (Protocol I, Art. 57, Sec. 2b)

An indiscriminate attack affecting the civilian population or civilian objects and resulting in excessive loss of life, injury to civilians or damage to civilian objects is a grave breach of the Geneva Conventions. (Protocol I, Art. 85, Sec. 3)[21]

Nixon and his successor, Gerald Ford, continued to fund the war waged by the Saigon government until the county was reunified and the war ended on April 30, 1975.  

The Vietnam Era saw three presidential elections won by apparent peace candidates, and thirteen years of war nevertheless.

If presidential elections aren’t enough to hold the executive accountable, what is?

Of course, citizens can take action independently, by speaking, writing, meeting, praying, teaching, and all other methods of direct action. That’s what we did during the Vietnam War, to great effect.

What’s missing is Congress, which is closer to the people than the president because every two years, not four, all U.S. House members and a third of U.S. Senators must face the electorate and justify their actions.

During Vietnam, opposition began at the community level and found its way directed towards Congress, which ended up playing a crucial role in ending the war. 

The executive branch never stopped pushing for war. On April 14, 1975, President Gerald Ford and Secretary of State Henry Kissinger met with the Senator Foreign Relations Committee at the White House to ask for more war aid.  New York Senator Jacob Javits told them, “I will give you large sums for evacuation, but not one nickel for military aid to (South Vietnamese President Nguyen Van) Thieu.”[22] The war ended two weeks later.

5. Accountability in High Technology Wars

Some may be tempted to dismiss Congressional accountability as a low-technology-era relic. How could the Founders have anticipated drones or cyber attacks? 

The claim can’t bear scrutiny.

First, every war introduces new technology, some of which is effective and some of which is not. In the Vietnam War, Defense Secretary Robert McNamara ordered the development of the high-tech “Electronic Battlefield” to revolutionize war making and shield the Saigon military while it grew stronger. It didn’t work. Trying new technologies doesn’t make government accountability obsolete.

Second, the introduction of new technologies makes accountability more necessary. While the recent Cornell Law Review article quoted below focuses on drone warfare, its conclusions apply equally to the new air war in general.

. . . one of the major grievances concerning the war in Vietnam was that we ended up in a war we did not sign up for in the first place. The problem is not the initial action itself but the escalation. Therefore, while drone strikes might not facially involve any large commitment, the true threat is the looming possibility of escalation. That threat exists in the context of drones, whether because of the risk of enemy retaliation or because of a general fear that an initial strike would snowball into a situation that would require troops on the ground. In both cases, an apparently harmless initial action could eventually unravel into a situation involving harms associated with traditional warfare.

Worse yet, even if that blowback was sufficient to incentivize the populace and Congress to mobilize, the resulting involvement would only occur after the fact. If we want restraints on presidential action, they should be in place before the United States is thrown into a war . . .

. . the same conditions are now in place as when the War Powers Resolution was enacted, creating a need to revisit the importance of the War Powers Resolution in light of the numbing effect of technology-driven warfare.[23]

6. The perils of public opinion

A late October 2014 poll asked, “Based on what you have read or heard, do you favor or oppose the military air strikes conducted by the United States and its Western European and Arab allies against the ISIS forces in Iraq and Syria?” By 76%-21%, respondents favored the air strikes.[24]

It would be a tempting mistake for Congress members to conclude this poll means they don’t need to assert their constitutional powers on the new war.

Their constituents are convinced Congress must make the decision about beginning this war, and do it immediately.

In early October 2014, the CBS News poll asked, “Do you think it is necessary for Congress to approve military action against ISIS militants in Syria, or do you think President Obama has the authority to take military action against ISIS militants in Syria without getting approval of Congress?” By 62%-33%, respondents said Congress needed to act.

The same poll asked, “Congress is currently in recess and will return after the November midterm elections. Do you think Congress should return to Washington now and debate the issue of U.S. military action against ISIS, or don’t you think this is necessary?” By 80%-17%, respondents said Congress should return to Washington immediately for this purpose.[25]

It stands to reason that if the public wanted Congress to suspend campaigning and deal with this in early October, it will be expecting quick action once Congress reconvenes.

Also, early public support for wars is common, as is the collapse of such support over time.  The public is initially influenced by barbaric atrocities, definitions of an inhuman enemy, pretexts, sensational press coverage, a support-the-troops spirit, a trust for top officials, general patriotism, and so on. The result is the “rally effect,” with spikes in public opinion favoring the war. As with the Vietnam War, Afghanistan War, and Iraq War, this rally effect fades as realities of war sink in. 

When this happens, no Congress member will want to explain to his or her constituents why they gave the White House a blank check for a ruinous war.

Finally, if Congress cedes its constitutional authority to the White House, it is also leaving the door open for the air war to escalate into a ground war.  President Obama has so far ruled that out, but he is under increasing pressure from inside and outside the Administration to change his mind.  If this comes to a head, Congress would be on the sidelines, even though a majority of their constituents do not want to send their children to fight in Iraq and Syria.

  • A June 2014 Public Policy Polling survey asked, “In order to deal with the crisis in Iraq, do you support or oppose sending combat troops to Iraq?” Overall, respondents opposed sending troops by 74%-16%, with 10% not sure. Republicans opposed sending troops by 57%-28%, Democrats opposed it by 82%-10%, and Independents opposed it by 86%-9%.[26]
  • A September CNN poll asked, “Please tell me whether you favor or oppose . . . sending U.S. ground troops to Iraq and Syria.” Respondents opposed the proposal by 61% to 38%.[27]
  • An October CNN poll asked, “Do you favor or oppose the United States sending ground troops into combat operations against ISIS forces in Iraq or Syria?” By 53%-45%, the answer was “no.”[28]

7. The choices before Congress

With the midterm elections over, Congress has four choices. It could --

Surrender its constitutional role, leaving the White House, Pentagon and CIA in charge of carrying out military policies of their choice for as long as they want.

  1. Authorize bombing and covert operations in Iraq and Syria against ISIS, and perhaps ground troops, without conditions. Representative Frank Wolf of Virginia, Senator James Inhofe of Oklahoma and Representative Darrell Issa of California are proposing open-ended authorization. The Issa bill would terminate in120 days or require another renewal. 
  2. Authorize an air war with substantive conditions. The foremost proponent of asserting Congressional authority, Senator Tim Kaine of Virginia, proposed S.J. Res. 44 on September 17.[29] It would authorize U.S. bombing strikes for one year, deny significant use of American ground troops in combat roles, and repeal the Authorization for the Use of Military Force Against Iraq Resolution of 2002. 
  3. Variations on this approach have been introduced by Senator Bill Nelson of Florida, who wants to authorize bombing for three years, and Representative Adam Schiff of California, who favors eighteen months. So far, none of the bills include repeal of the 2001 Authorization of the Use of Force against Al Qaeda and "associated" groups, which the Obama administration uses to justify its bombing campaign against ISIS, although the Schiff bill does include a sunset provision.
  4. Deny the White House authorization for either an air war or a ground war.

8. We propose:

For the above reasons, it is imperative that Congress hold --

  1. Full hearings and public debate to educate the public about the choices, and
  2. A vote on authorization so that the public can hold the Members accountable.

Since the President himself says there is no military solution, we see no reason to vote for war. 

If there is a vote to authorize, however, there should be:

  1. A narrow definition of the "enemy" to avoid the open-ended language of the 2001-02 War on Terrorism authorization against Al Qaeda and "associates,"
  2. Very strong language prohibiting US ground troops, with no loopholes;
  3. A sunset or timeline of one year, or no more than eighteen months, so that another vote must be taken before the 2016 elections;
  4. Clear reporting requirements on casualties including civilian casualties, direct and indirect taxpayer costs, and metrics of progress;
  5. Extension of the role of the independent inspector-general. 

Urgent diplomacy is needed towards a power-sharing arrangement that addresses the deep grievances of the Sunni population in both countries. In Iraq, for example, the US has installed a sectarian Shiite-dominated government and security forces, violating a US law [the Leahy amendment], which prohibits assistance to any military units that systematically violate human rights. If an equitable power-sharing arrangement cannot be reached, our government should terminate any involvement in sectarian war.

Congress must be fully involved in supporting this diplomatic outcome. The War Powers Resolution was the outcome of a great mass movement and Congressional intervention, which terminated the Vietnam War when the incumbent Nixon and Ford administrations would not do so. The Resolution must be used again to restrain and ultimately end another Iraq War. 

Published by The Democracy Project, 10536 Culver Blvd, Ste. H2, Culver City 90232

[1] “The President’s News Conference,” April 4, 1956, Public Papers of the Presidents, Dwight David Eisenhower, January 1 – December 31, 1956, p. 380.

[2] U.S. Senate: Longest serving Senators, https://www.senate.gov/senators/Biographical/longest_serving.htm

[3] House Seniority List – 113th Congress, Roll Call, http://www.rollcall.com/politics/houseseniority.html

[4] World Factbook – United States, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/us.html

[5] U.S. Constitution, Article I, Section 8, National Archives, http://www.archives.gov/exhibits/charters/constitution_transcript.html

[6] U.S. Senate compilation: https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm

[7] The Civil War was an internal conflict. President Abraham Lincoln did not recognize as legitimate the government of the Confederacy or of any of the seceding states. “Lincoln Declares War,” Ted Widmer, New York Times, April 14, 2009.

[8] “Report on the Gulf of Tonkin Incidents,” President Lyndon B. Johnson, August 4, 1964, Miller Center, University of Virginia, http://millercenter.org/president/speeches/speech-3998

[9] “Countries aren’t monopoly cards: An Air Force officer’s Gulf of Tonkin reflections — 50 years later,” Rick Whalen, Bangor Daily News, August 1, 2014.

[10] “30-year Anniversary: Tonkin Gulf Lie Launched Vietnam War,” Jeff Cohen, Norman Solomon, Fairness and Accuracy in Reporting, July 27, 1994. A quarter century later, Stockdale wrote, “[S]ince the United States has given up declaring war and started sending armies forward . . . without a national consensus behind them, things have not gone well,” “On Public Virtue,” Vice Admiral (ret.) James Bond Stockdale, in Thinking About America: The United States in the 1990s, A. Anderson and D. Bark, editors, 1988, page 480.

[11] George W. Ball, The Past Has Another Pattern: Memoirs (New York: Norton, 1982), p. 379.

[12] “The U.S. Government and the Vietnam War: Executive and Legislative Roles, Part IV,” William Conrad Gibbons, 1995: Princeton University Press, p. 826.

[13] U.S. Department of Commerce, Bureau of the Census, "Vietnam Conflict—U.S. Military Forces in Vietnam and Casualties Incurred: 1965 to 1972," table 428, Statistical Abstract of the United States, 1973 (Washington, D.C.: U.S. Department of Commerce, Social andEconomic Statistics Administration, Bureau of the Census, 1973), 267.

[14] War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath, John Hart Ely, 1193, page 49.

[15] “An Obama Ally Parts With Him on War Powers,” Jonathan Weisman, New York Times, October 5, 2014.

[16] “Remarks on the City Hall Steps, Dayton, Ohio,” President Lyndon Johnson, October 16, 1964, University of California – Santa Barbara, American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=26621

[17] No Peace, No Honor: Nixon, Kissinger, and Betrayal in Vietnam, Larry Berman, 2001: Free Press, page 45.

[18] “Address Accepting the Presidential Nomination,” Richard Nixon, Republican National Convention, Miami Beach, Florida, August 8, 1968, University of California – Santa Barbara, American Presidency Project,    http://www.presidency.ucsb.edu/ws/?pid=25968

[19] “Vietnam Conflict Extra File Record Counts by Incident or Death Date,” Defense Casualty Analysis System, National Archives, http://www.archives.gov/research/military/vietnam-war/casualty-statistics.html#category

[20] “Transcript of Kissinger's News Conference on the Status of Vietnam Peace Negotiations,” Henry Kissinger, White House National Security Advisor, October 27, 1972, http://highered.mheducation.com/sites/dl/free/0072849037/35275/11_2.html

[21] Reference Guide to the Geneva Conventions, Society of Professional Journalists, http://www.spj.org/gc-index.asp?#c

[22] Memorandum of Conversation, White House, April 14, 1975, Gerald R. Ford Library and Museum,   http://www.fordlibrarymuseum.gov/library/document/0314/1553026.pdf

[23] “Droning on: The War Powers Resolution and the Numbing Effect of Technology-Driven Warfare,” Judah Druck, Cornell Law Review, Volume 98, Issue 1, November 2012, p. 232, 236, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3259&context=clr

[24] CNN Poll, nationwide, October 24-26, 2014.

[25] CBS News poll, nationwide, October 3-6, 2014.

[26] “National Survey Results,” Public Policy Polling, June 14-15, 2014

[27] CNN Poll, September 5-7, 2014

[28] CNN Poll, October 24-26, 2014

[29] Text of S.J. Res 44: https://www.congress.gov/bill/113th-congress/senate-joint-resolution/44/text