For Discussion: Expanding the War Powers Act

Missiles being loaded onto a U.S. military Reaper drone in Afghanistan. (Photo: U.S. Air Force)The US Constitution and the 1973 War Powers Act provide a crucial role for the democratically elected Congress in approving decisions to go to war. Those protections are fast disappearing in the new age of drone and cyber warfare and the growth of secrecy around the presidency and Pentagon.

The public has every right to assert its democratic role in influencing war-making decisions through the election of its popular representatives. The Congress has defaulted in its own responsibility to review and improve its powers in this new age. In this vacuum, the White House and Pentagon have usurped the power to decide on war and peace.

The 1973 War Powers Act was passed in the latter days of the Vietnam War, countering an imperial presidency. But the Obama administration argues that its provisions apply only where there is “sustained fighting,” an “active exchange of fire with hostile forces,” or the deployment of American ground troops. According to the White House, the WPA was not applicable to the Libyan War, despite Pentagon budget language funding plans to “find, fix, track, target and destroy regime forces,” and “occasional strikes by unmanned Predator UAVs against a specific set of targets.”

The Administration has kept secret its legal rationale for these questionable arguments. But there is no question that the War Powers Act has become obsolete in the age of drones and cyber war.

In drone attacks, the president alone decides on the execution of a “kill list” of enemies drawn up in secret. The CIA secretly directs its own military forces in Afghanistan and Pakistan. A global cyber war already has begun, with the US seeking “dominance” amidst a cloud of “government secrecy that makes the Cold War look like a time of openness and transparency.” (Clarke, Richard. Cyber War.)

Not only democracy and the rule of law suffer in this time of secret executive warfare. When secrecy fails to protect us, it is our civilian population and infrastructure that will suffer massively while the secret branch of power is likely to be sheltered in bunkers.

The time is overdue for the assertion of greater public control over war powers. Civil society groups should draft, circulate and advocate proposals. Congress should hold hearings with the inclusion of civil society representatives. The administration should initiate greater transparency at once and engage the public, the Congress and the media in responding to this dangerous democracy deficit.