Lou Fisher wrote Presidential War Power and is the author of The Constitution and 9/11: Recurring Threats to America's Freedoms (University Press of Kansas), coming out this August.  He also testified in front of the National War Powers Commission.

We asked Lou for his reaction to yesterday's New York Times Op-Ed, "Put War Powers Back Where They Belong," by James A. Baker III and Warren Christopher.  Here is Lou's response to Baker and Christopher's Op-Ed.

1.  They say "Our Constitution ambiguously divides war powers between the president (who is commander in chief) and Congress...."  There was never anything ambiguous about Congress being the only branch that could take the country from a state of peace to a state of war.  No one before President Truman ever argued that the title "commander in chief" empowered the President to commit offensive operations against another country.

2.  They claim the WPR "too narrowly defines the president's war powers to exclude the power to respond to sudden attacks on Americans abroad." In fact, the WPR leaves the door entirely open to anything the President wants to do for the first 60 to 90 days.

3.  They object that the WPR "empowers Congress to terminate an armed conflict by simply doing nothing."  I have never defended the WPR and don't intend to here, but there is nothing unconstitutional about Congress controlling a war power matter by doing nothing.  If the President submits a proposal to use military force abroad and Congress ignores his proposal, that is the end of it.  Congress isn't required to act.  If the President requests funds to continue a war and Congress provides nothing, that is the end of it.

4.  Their proposal would not restrict "covert operations."  We all know that the CIA was very active in Afghanistan and Iraq in 2001-03 and there are reports that it is currently involved in Iran.  We need to be concerned about unilateral paramilitary operations.

5.  The consultative committee would be composed of party leaders and the chairs and ranking members of certain committees.  We remember the role of the Gang of Eight in being briefed about illegal NSA surveillance after 9/11.  Whatever war powers belongs to Congress belongs to the institution as a whole, including its most junior members, not to some consultative committee.

6.  "If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval" (subject to the President's veto).  First, if a resolution of approval were defeated in either House, that is the end of it.  Congress should not then have to vote for a resolution of disapproval.  If it is vetoed, lawmakers would need a majority of two-thirds in each house for the override.  That means the President could start a war and continue it if he maintained a margin of one-third plus one in a single House.

7.  They say their proposal "is good" because it would force Congress "to take a position on going to war."  Congress, under the Constitution, is not required to take floor votes.  Had Congress ignored the Iraq Resolution in October 2002, that would have been the end of it, constitutionally.

8.  Their proposal "would give Congress access to intelligence, a full-time staff...."  No.  It would give a handful of members (the consultation committee) access to intelligence and staff, quite likely with the admonition (like the Gang of Eight and NSA) not to share this sensitive information with anyone else.  Congress, as an institution, would be handing over its powers to a subgroup.