Jewish World Review August 28, 2002 / 20 Elul, 5762

Terry Eastland

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Consumer Reports

So then let the president declare war | Concerning Iraq, is the president or any one in Congress, for that matter, thinking about a formal declaration of war?

Apparently not, to judge by news accounts. Yet if we must go to war against Iraq, a joint resolution formally declaring that war deserves consideration. The Constitution gives Congress the power to declare war. We have had just five declared wars: the War of 1812, the Mexican War (1846-1848), the Spanish-American War (1898), World War I (1917-1918) and World War II (1941-1945).

On scores of other occasions, of course, we have gone to war, though not always with congressional involvement. When Congress has approved war, it has done so mostly through joint resolutions "authorizing" the use of military force.

In January 1991, for example, Congress passed such a resolution before we engaged Iraq in the Gulf War. In September, Congress again opted for a joint resolution authorizing the use of force, this time against terrorists and the nations that harbor them.

On Monday, The Washington Post reported that the president's lawyers don't think the president needs any such authorization before he launches war against Iraq. The executive branch historically has been reluctant to concede much of a role to Congress in the decision to go to war. The first President Bush asked Congress only for a resolution stating its "support" for his use of force against Iraq. Though Congress rejected his request and passed the authorizing resolution instead, Mr. Bush insisted, even in the course of signing the legislation, that it wasn't legally necessary.

In response to the attacks of Sept. 11, President Bush did ask for the resolution authorizing his use of force in the war on terrorism. But like the father, the son made clear his belief that the resolution wasn't needed. The son had a better argument than his father, inasmuch as it was the United States that was attacked and no one doubts that a president may on his own initiative wage war in the nation's defense.

Why is it that both Bushes agreed to resolutions they thought unnecessary? Practical considerations. The first Bush was advised that a war effort agreed to in advance by both branches would send a message of unity to our troops. It is hard to argue with that, nor with the second Bush's reason for seeking an authorizing resolution - that it would demonstrate our unity to the entire world (and thus everywhere terrorists might lurk).

In the case at hand, The Post reports, the Bush lawyers find authority (though claiming, of course, it really isn't needed) for him to act in the 1991 resolution signed by his father. That resolution permitted the use of force to carry out a United Nations Security Council mandate that Iraq eliminate weapons of mass destruction and open the nation to U.N inspectors. Because Iraq hasn't complied, the 1991 resolution remains a basis for action.

The lawyers also find authority (though again claiming it isn't necessary) in last fall's resolution. The lawyers apparently think there is evidence showing an Iraq-al-Qaeda connection, though what is in the public domain is inconclusive. The bottom line of the Bush lawyers remains the same: No new authority is needed.

Nonetheless, the president is likely again to find compelling the practical case for a resolution authorizing force. But there also is a practical case for considering a declaration of war.

A formal declaration would embrace the president's unprecedented but defensible argument in behalf of "pre-emptive war." It would state the goal of destroying Iraq's weapons of mass destruction (which is the transcending issue, bigger than any proven connection to al-Qaeda) and the means of their production and delivery. And it would encompass the demise of Saddam Hussein and thus the goal of "regime change."

An authorizing resolution could do those things as well, but a formal declaration would have a recognized solemnity born of its historical usage that an authorizing resolution would lack. And think of the kind of congressional debate it might produce even as the midterm elections draw near. True, there would be legal ramifications incidental only to a declaration of war, as other statutes would kick in. Those effects would have to be examined. But it is hard to imagine a more emphatic way of expressing American resolve in a war that, if undertaken, must be won. Declaring war is an option that ought to be on the table.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

08/21/02: Will Bush finally 'fix' affirmative action once and for all?
08/06/02: President must take up cause of Egyptian democracy warrior
07/31/02: With each war, civil liberties are curtailed less

© 2002, Terry Eastland