MIKE PESCA, host:
And now a reading from the Constitution, Article One, Section Eight. "The Congress shall have power to declare war." It lists some other things, too. Keep that in mind. Article Two, Section two, "The president shall be commander-in-chief of the Army and Navy of the United States and the militia of the several states." Hmmm. That seems to leave some wiggle room. Wiggle room, which means that the United States has waged war many times, but it has only formally declared war five times and never since World War II.
The War Powers Resolution of 1973 was supposed to address those gaps. It really didn't. It's usually followed, but not always, and the Act is often followed retroactively, as the president says something like, hey, troops are going in and then Congress passes a resolution saying, hey, send the troops in. So, the National War Powers Commission has recommended an overhaul. Michael Glennon is a professor of international law at the Fletcher School of Law and Diplomacy at Tufts. The National War Powers Commission consulted him in drafting its report. Hello, Professor Glennon.
Professor MICHAEL GLENNON (International Law, Fletcher School of Law and Diplomacy, Tufts University): Good morning.
PESCA: Good morning. So, before we get to what the new thing says, let's talk about this question. This clearly isn't one of those if-it-ain't-broke-don't-fix-it situations. Anyone who looked at the War Powers Resolution says it really doesn't work, but do you think having a good resolution would actually lead to better foreign policy, or just sort of better bookkeeping and better following of the rules?
Prof. GLENNON: Well, first of all, it would lead to be our being able to claim with truth that we are a nation of laws and that we are committed to the rule of law. The Constitution does place limits on the president's power to start a war without congressional consent, and it would lead to be better policy. Because if you can't sell a war to the Congress, you can't sell it to the American people. It's good for Congress and the president to be on the same page when a war starts. And that's the whole purpose of the War Powers Resolution.
PESCA: What do you think the most important thing the new proposal would bring to the table is?
Prof. GLENNON: Clarity and consultation. The problem - one of the problems, and there are, as you say, many problems, with the War Powers Resolution, one of the problem is it says that the president's got to consult with Congress before introducing the armed forces to hostilities. The problem is it doesn't say with whom he has to consult, and the consultation has been spotty and uneven at best. The new proposal would set up a joint consultative committee consisting of the congressional leadership and the chairman of and vice chairman and ranking members of key congressional committees and set up a permanent staff under that joint committee and require the president to consult with that committee.
PESCA: Do you think presidents will go for this?
Prof. GLENNON: It's hard to see why compliance with this consultation requirement will be greater than compliance with the War Powers Resolution.
PESCA: Well, they didn't comply with the War Powers Resolution, is the point.
Prof. GLENNON: Well, it's not quite that simple. In fact, the only president blatantly to violate the War Powers Resolution was President Clinton, who kept the armed forces in hostilities in Yugoslavia 77 days beyond the 60-day limit in the War Powers Resolution. So, that's really the key of the resolution. It imposes a 60-day time period, and that's the part that hasn't worked well largely for technical reasons, having to do with the way it gets triggered.
PESCA: See, that's how - as I look at the politics on the ground, it seems to me that, even though it's a bilateral commission, and Warren Christopher and Jim Baker have headed up this commission, and they have members of both sides of the aisles on the commission, it does seem that the people who are arguing for an overhaul right now are Democrats, because they don't like how the Iraq war is going. But what you just said is true. The only president to literally violate it was Bill Clinton and the bombing of Serbia during the Yugoslavian war. People tend to forget that.
Prof. GLENNON: Well, I think that's true, and the hope of the commission, which has a lot of very distinguished people on it, is that the impetus for reform will improve in the next administration and that the several proposals that are on the table will be considered early in the next Congress.
PESCA: Why do you think having more congressional input better serves the public? I know that your answer is, we can say we're following the law, but just, you know, everyone gets to vote for the president. We only get to vote for two senators, so two percent of the Senate, and we only get to vote for a quarter of one percent of the House of Representatives. I think most people are more comfortable with the president saying, I'm bringing you to war, and you can hold me accountable afterwards than, you know, Congress, most of whom you don't even get to vote on.
Prof. GLENNON: You know, the truth is that polls have been taken on this issue over the last 30 years, and they have regularly showed 80-percent majorities favoring congressional approval before the nation goes to war. It's kind of counterintuitive. A lot of people are surprised by that. But on reflection, I mean, these are life-and-death decisions, and people want their elected representatives to participate. This is the reason we don't have an elected king. This is the reason that we moved to a constitutional government of a republic rather than adopting the George III model.
PESCA: So, when the commission called you in and said, you know everything there is to know about this, what specifically did they want from you? General input or fine points on matters of law?
Prof. GLENNON: Both. There are lots of technical issues that arise concerning congressional procedure, for example, and constitutionality, so they were concerned with big picture and technical items.
PESCA: And when you - how many days were there with the commission?
Prof. GLENNON: Well, I was there only one day.
PESCA: Did you get a sense of, you know, what they thought needed to be done?. Did you get a sense of how the commission was working? Was it hail-fellows-well-met who were all agreeing? Was there a lot of tension in the room?
Prof. GLENNON: You know, the first point to be made is that this is not a government commission. There's a lot of misunderstanding about this. This is a private organization. It's a group of, as I say, very distinguished experts, but it was convened by the University of Virginia. This is not a government study, and my sense was that the commission was very interested in starting from scratch and reexamining all options. They asked extremely good questions, searching questions, and gave these issues lots of consideration.
PESCA: And so, as a private commission not associated with the government, it's really just a recommendation? There's - I know they have no power, but beyond, hey, we think this is a good idea and we used to be secretaries of state, is there anything that they could do to maybe get the - some momentum behind their ideas?
Prof. GLENNON: Well, you know, the Iran Study Commission was largely a private group as well, and private groups of nongovernmental organizations have a long history of contributing to the study of important questions of public policy. So, this is welcome, and the fact that there are so many prominent former officials on this commission may give reform a boost.
PESCA: I'm just glad to see that Jim Baker is keeping busy these days. Michael Glennon is a professor of international law at Tufts University, former legal counsel to the Senate Foreign Relations Committee. Thank you very much, professor.
Prof. GLENNON: My pleasure.
PESCA: Coming up on this very program, we help you get better customer service. We also talk about the industry that's not known for its great customer service, the airlines. This is the Bryant Park Project from NPR News.