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Why Should We Debate About Restriction of Presidential War Powers

Why Should We Debate About Restriction of Presidential War Powers

By Kelly Michael Young, Associate Professor of Communication and Director of Forensics, Wayne State University

                  About six months ago, my assistant debate coaches and I decided that it would be a good idea to craft a justification paper to persuade the NDT-CEDA college policy debate community to debate the proper limits of presidential war powers and the consequences of such restrictions. At that time, there was almost daily coverage and commentary about the legality and consequence of War on Terror policies such as Unmanned Aerial Vehicles (UAV) drone signature strikes in Pakistan and Yemen, indefinite detention, and the 2011 Libya intervention. We thought the topic would make for a good season of debate because it was rather timely and there was a clear controversy that pitted libertarian and progressive advocates and pro-Congress constitutional scholars against mostly conservative pundits and pro-Executive constitutional scholars. On April 22, we submitted a proposal to the NDT-CEDA debate community contending that we should have a year-long debate about restricting presidential war powers in areas such as UAV signature strikes, Offensive Cyber Operations (OCOs), Indefinite Detention, and introduction of United States Armed Forces into hostilities (http://www.cedadebate.org/forum/index.php?action=dlattach;topic=4800.0;attach=1667). The controversy was selected by the community.

                  When we wrote the paper, we argued that the topic would make for good debate because it was timely “but not too timely.” Little could we have anticipated a number of events that occurred since April 22 that would make us somewhat regret this statement. First, on May 23, President Obama gave an important speech at the National Defense University in Washington, D.C. that publicly outlined a number of new guidelines for UAV strikes and repeated his call on Congress to begin closure of the Guantanamo Bay detention center (http://articles.washingtonpost.com/2013-05-23/politics/39467399_1_war-and-peace-cold-war-civil-war). While none of these procedures or calls fundamentally changed the Obama administration’s rationale or legal defense for these policies (http://www.csmonitor.com/USA/DC-Decoder/2013/0524/Has-Obama-tightened-US...), the speech certainly raised the profile of the debate over executive war powers considerably. Second, on June 14, The Guardian newspaper released information obtained from whistleblower Richard Snowden, a U.S. programmer for the National Security Agency (NSA), which revealed the existence of secret NSA programs that collected telephone metadata and internet surveillance programs such as PRISM (http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data). Third, on August 31, Obama announced that he would seek congressional approval for a military strike against Syria (http://www.nytimes.com/2013/09/01/world/middleeast/syria.html). Although the President made clear in his announcement that he believed he had the constitutional authority to strike without approval, for some commentators (http://thehill.com/homenews/administration/319827-obama-breaks-from-precedent-on-syria/), Obama’s announcement represented a complete reversal in presidential war making precedent, especially in light of the 2011 Libyan intervention. As the commentary and reaction to this announcement and the other recent events of the past four months continue to play out, we believe that these events will produce a robust and dynamic context for a year-long collegiate debate about presidential war powers and congressional oversight. While we are amazed that so much has happened in such a short time, we believe that the core of the controversy – should Congress or the Courts impose additional restrictions on presidential war powers—remains fundamentally the same.

                  Beyond its obviously timeliness, we believed debating about presidential war powers was important because of the stakes involved in the controversy. Since the Korean War, scholars and pundits have grown increasingly alarmed by the growing scope and techniques of presidential war making. In 1973, in the wake of Vietnam, Congress passed the joint War Powers Resolution (WPR) to increase Congress’s role in foreign policy and war making by requiring executive consultation with Congress prior to the use of military force, reporting within 48 hours after the start of hostiles, and requiring the close of military operations after 60 days unless Congress has authorized the use of force. Although the WPR was a significant legislative feat, 30 years since its passage, presidents have frequently ignores the WPR requirements and the changing nature of conflict does not fit neatly into these regulations. After the terrorist attacks on 9-11, many experts worry that executive war powers have expanded far beyond healthy limits.  Consequently, there is a fear that continued expansion of these powers will undermine the constitutional system of checks and balances that maintain the democratic foundation of this country and risk constant and unlimited military actions, particularly in what Stephen Griffin refers to as a “long war” period like the War on Terror (http://www.hup.harvard.edu/catalog.php?isbn=9780674058286). In comparison, pro-presidential powers advocates contend that new restrictions undermine flexibility and timely decision-making necessary to effectively counter contemporary national security risks. Thus, a debate about presidential wars powers is important to investigate a number of issues that have serious consequences on the status of democratic checks and national security of the United States.

                  Lastly, debating presidential war powers is important because we the people have an important role in affecting the use of presidential war powers. As many legal scholars contend, regardless of the status of legal structures to check the presidency, an important political restrain on presidential war powers is the presence of a well-informed and educated public. As Justice Potter Stewart explains, “the only effective restraint upon executive policy and power…may lie in an enlightened citizenry – in an informed and critical public opinion which alone can protect the values of a democratic government” (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0403_0713_ZC3.html). As a result, this is not simply an academic debate about institutions and powers that that do not affect us. As the numerous recent foreign policy scandals make clear, anyone who uses a cell-phone or the internet is potential affected by unchecked presidential war powers. Even if we agree that these powers are justified, it is important that today’s college students understand and appreciate the scope and consequences of presidential war powers, as these students’ opinions will stand as an important potential check on the presidency.