War Powers and Unintended Consequences

January 10, 2020
Featured Image
(Original Caption) This photo shows General Alexander Haig Jr., (L), and Henry Kissinger with Richard Nixon, (C), outside Nixon's Key Biscayne home. The Florida White House announced that Haig was to leave late January 14th for Saigon to discuss the Vietnam peace negotiations with South Vietnamese President Nguyen Van Thieu.

A president orders a strike without consulting Congress and he is seen by many as a madman. The act sets the world on fire with condemnation coming from foes and allies alike. A false euphoria breaks out when the president’s bold gamble results in short-term success. But that president will face impeachment and karma will have a way of catching up. That president’s name was Richard Nixon.

In the fog of the present, it is impossible to predict the future. President Trump’s killing of  top Iranian Quds Force general, Qassem Suleimani, was undertaken without consultation with Congress. It was, to some, an act of war and its legality under the War Powers Act—passed during Nixon’s time and other legislation—is being hotly debated. But for the moment, at least, after the Iranian response with ballistic missile attacks, President Trump seems to be de-escalating, and the country, like the stock market, is breathing a sigh of relief.

But what comes next? With the presidency, the law of unintended consequences usually provides the answer in the long run.

Take Richard Nixon. In December 1972, Nixon undertook a brutal bombing campaign of Hanoi and Haiphong to force a settlement of the war in Vietnam—at least an end for the United States. Nixon had won a landslide victory in November 1972, but peace was not “at hand,” as Henry Kissinger had trumpeted just before the election. Instead, the Congressional make-up, despite Nixon’s steamrolling victory over peace-loving South Dakota Senator McGovern, continued to be Democratic—indeed the Democrats picked up seats in the Senate with wins by candidates like Joe Biden in Delaware. The House and the Senate retained Democratic majorities.

And this led the North Vietnamese to backtrack in peace negotiations in Paris with Kissinger. Congress, the Communists knew, was likely to cut off appropriations for the continuation of the war, and it behooved the North Vietnamese negotiators to stall things until the new Congress was convened in January 1973.

Kissinger returned to Washington on December 13, 1972, from a negotiating session with the North Vietnamese in Paris. The next day he met with President Nixon and Al Haig, Nixon’s top general, in the Oval Office. The White House taping system caught the entire meeting, unbeknownst to either Kissinger or Haig. Kissinger was in a foul mood. “They’re shits,” he said of his negotiating counterparts. “They are tawdry, miserable, filthy people.” He bitterly quipped that the North Vietnamese had a bargaining style that “made the Russians look good.”

All three men concluded that something drastic had to be done. Kissinger said that the North Vietnamese were “terrified of what we would do.” Nixon assured the men that they still had chips to play and he suggested the use of massive B-52s, which could fly above the nasty December weather and drop enough bombs to destroy large targets in the North, including population centers. Kissinger agreed that it made sense to “bomb the bejesus out of the North.”

The bombing began on Monday, December 18. The international community was stunned. “Faith in reason and civilization has been one of the intangible victims of Richard Nixon’s Christmas bombing offensive against North Vietnam,” Anthony Lewis of the New York Times wrote. “If an elected leader of the greatest democracy acts like a maddened tyrant, and not one person in his Government says the feeblest nay, it is hard to argue against the view that ours is a lunatic society.”

Nixon did not consult Congress. Two important Senators felt particularly aggrieved. Mike Mansfield, the Senate Majority Leader, met with Nixon on January 2, 1973. He described the unrest in the Senate over Nixon’s bombing campaign. “This is the end of the line,” he predicted. For another reason, Sam Ervin of North Carolina, was pushing back against the imperial presidency. Ervin and others were suing Nixon for his failure to spend money that Congress had appropriated (this unhappiness led the Impoundment Act of 1974, the law that OMB officials worried Trump was violating when he withheld money designated for Ukraine).

Nixon’s gamble paid off in the short run. By the end of January 1973, the North Vietnamese had agreed to peace accords with the United States and South Vietnam. Nixon’s popularity reached its peak—with nearly a 70% approval rating.

But the victory came at dire costs. The Senate voted at the beginning of February 1973 to fire up Ervin’s Watergate Committee. Remember, the Watergate break-in occurred in June 1972, five months before the election. Voters knew of the scandal and most assumed Nixon was aware of or had ordered the operation, but they simply didn’t care. The electorate was razor focused on ending the war in Vietnam and they could not abide a “bug out” of the war, as Nixon called McGovern’s plan to simply withdraw from the conflict. Too many lives had been lost; too much treasure sunk. As George C. Scott bellowed in the opening scene of the wildly popular film Patton, “Americans have never lost a war and will never lose a war. The very thought of losing is hateful to Americans.”

But with the war concluded, Nixon was vulnerable. His disregard of Congress in ordering the bombing was a stick in the eye of the branch of government with the power to declare war, and this seemed to follow a pattern: Nixon also failed to get Congressional support for a secret bombing campaign in Cambodia a few years earlier (which later was argued as one of the articles of impeachment against him). Congress wanted to reassert itself. The impoundment of funds by the president was likewise seen as an arrogation of power belonging exclusively to Congress. In this context, the Senate voted unanimously to investigate Watergate. That opened a pandora’s box for Nixon, who had not ordered the break-in, but he led the cover-up. Testimony before Ervin’s committee also uncovered the unexpected: a taping system that recorded all of Nixon’s criminal activities in the White House.

So, while Nixon benefited enormously from the bombing that led to the war settlement, he inadvertently sowed the seeds of his own destruction. The War Powers Act was one consequence. Resignation from the presidency after the Supreme Court ordered Nixon to turn over his tapes to the Special Prosecutor was another. And the war was lost in Vietnam when the North began violating the accords, knowing Nixon was too weakened by the Watergate scandal to respond.

Karma has its ways. Has President Trump avoided a similar disaster by his de-escalation of tensions with Iran? It is too soon to know. But there is little question that it is high time for Congress to revisit war powers and to take back its authority as specified in the Constitution.

James Robenalt

James Robenalt is the author of four nonfiction books, including January 1973, Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever. He also contributed to The Presidents and the Constitution, A Living History, edited by Constitutional Scholar and President of Duquesne University Ken Gormley. Robenalt lectures with John Dean on legal ethics