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Last week’s article drew a number of responses disagreeing with my conclusion that President Bush must first seek congressional authorization before committing U.S. troops to a war against Iraq. The power to declare war is clearly delegated to the legislative branch in the Constitution. (See Article I, Section 8, Clause 11.)
Many argued that Congress had in fact already given President Bush the requisite approval in a joint resolution following the Sept. 11 attacks on the United States. “I never said that Congress shouldn’t declare war first or that President Bush doesn’t need a declaration of war,” asserted Rush Limbaugh in response to my piece. “I said Congress did declare war with their 9/14 resolution.” (Emphasis his.) Many posters at Free Republic also correctly objected to my failure to refer to the Sept. 14 resolution.
This would be perfectly valid if there was convincing evidence of
a link between the Iraqi government and Sept 11. The resolution in question
only authorizes the use of force against “those nations, organizations,
or persons he [the president] determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons, in order to prevent any future
acts of international terrorism against the United States." Some
observers contend that such a connection does exist, citing a meeting
between lead hijacker Mohamed Atta and an Iraqi diplomat in the Czech
Republic and other reports. Others dispute this link.
Vice President Dick Cheney described an attack on Iraq as a preemptive strike in a recent appearance on “Meet the Press,” stating: “If we have reason to believe someone is preparing an attack against the U.S., has developed that capability, harbors those aspirations, then I think the U.S. is justified in dealing with that, if necessary, by military force." Similarly, Secretary of State Colin Powell told “FOX News Sunday,” “When you can intercept a terrorist act that is heading your way or you can deal with a regime or a situation before it comes to a crisis level and threatens you, then it is an option that you should keep in mind and on the table."
I agree. But this would constitute anticipatory self-defense against future terrorist attacks, not retaliation against the perpetrators of Sept. 11. Thus, going to war against Iraq would be something not covered by last year’s joint resolution. Up to this point, Bush administration officials have been arguing that Sept. 11 shows us how seriously we should take the risk of Saddam Hussein acquiring weapons of mass destruction. But that is very different from saying that Saddam Hussein was involved in those past terrorist attacks. Separate threats should be analyzed and reacted to separately.
It also won’t do to suggest that a strike against Iraq is the same as a strike against the Islamist ideology that animates al Qaeda and the Taliban. Saddam may have given aid and comfort to groups that terrorize Israel, but his religious beliefs differ somewhat from theirs and his dictatorship is largely secular. Iran has more in common with the Islamists and, as the Boston Globe has reported, some observers think its government is closer to al Qaeda and similar groups.
One respondent argued that my interpretation of Congress and the U.N. Security Council’s original intent in supporting the Persian Gulf War in 1991 was “subjective.” But a look at the facts of that conflict makes it difficult to see what other conclusion could be reached. The House of Representatives, after approving the use of force to expel Iraq from Kuwait, voted the same day that an actual invasion of Iraq would have to be approved by Congress beforehand. President George Bush ended the war after Kuwait was liberated in part because it was unclear that Congress or the coalition wanted the United States to go any further than that. It’s hard to see how this authorizes an invasion and regime change by another administration over a decade later.
Great Britain is the only Security Council member strongly supportive of an Iraq war to topple Saddam. Since my last article was written, Kuwait has come out in favor, but none of the other Arab partners in the Gulf War coalition have done so. It is possible that they eventually will; it is equally possible that they are only feigning opposition to appease the so-called “Arab street” while they privately hope the Bush administration will do the job. But it isn’t clear that the people who drafted the original U.N. resolutions against Iraq intended for it to cover a new war and circumstances have clearly changed since those resolutions were first adopted. In any event, the U.N. isn’t the ultimate constitutional arbiter of whether the U.S. goes to war.
Some conservatives even cited the (unconstitutional) War Powers Act, which allows presidents to commit U.S. troops for up to 60 days without prior congressional approval. The fact that Congress cannot amend the Constitution in order to abdicate its enumerated powers by simple legislation notwithstanding, this law was actually intended to limit presidential war powers after Vietnam and does require eventual congressional approval. (This is why most people who believed in the centrality of executive power opposed it.) This legislation assumed that presidents would enter troops into brief incursions while Congress would retain its decision-making power over longer periods of hostility. We have reason to believe the Iraqi campaign and occupation will be far lengthier than, say, President Reagan’s 1983 intervention in Grenada.
Others made much of the fact that Congress has only “declared” war five times in our history, the first being the War of 1812 and the last being World War II. But, as Stuart Taylor, Jr. noted in the National Journal, “there is a scholarly consensus that what the Constitution requires is not a formal ‘declaration’ but a prior vote authorizing acts of war.” Limbaugh, while arguing that last year’s joint resolution should be considered a declaration of war, made a similar point in the Wall Street Journal. In John Hart Ely’s War and Responsibility, it was observed that for most of our history “presidents were pretty scrupulous about ensuring that Congress had enlisted before marching the troops off to battle.” Congress approved Operation Desert Storm. Even in Vietnam, President Johnson had congressional authorization to defend South Vietnam under the 1964 Gulf of Tonkin resolution.
To be sure, presidents have usurped congressional war powers many times in our history. But conservatives should be the last people to defend present and future unconstitutional usurpations by citing previous ones. Some have actually argued that a declaration of war should be eschewed because Bill Clinton didn’t seek one for his intervention in Serbia and Kosovo (which I opposed). But since when was Clinton the standard for constitutionality? For that matter, since when did conservatives believe that the last fifty years of federal activity was the standard for constitutionality? Didn’t we rightly reject the “every president does it” argument as specious during the 1998-99 impeachment debate? And why should constitutional standards differ based on which party holds the White House?
Above all: What is wrong with taking this debate to Congress and having a recorded vote on who wants to intervene in Iraq and who does not? As Taylor acknowledged in his National Journal column, this is as much a matter of congressional abdication as presidential usurpation: “Many members prefer to take a stand only after seeing how a war turns out, and how the public feels about it.” Why not have all our elected representatives debate the options of how best to wage the war on terrorism and how best to deal with the risks posed by Saddam and then show the American people where they stand? If the war proceeds after a debate and congressional approval, there is likely to be greater American unity and commitment to its prosecution.
President Bush is now consulting with Congress and it appears likely
that when he acts, he will have its approval. But this is not just smart
politics. It is the requirement of the Constitution and the law of the