Jewish World Review August 13, 2002 / 5 Elul, 5762
http://www.NewsAndOpinion.com | After months of presidential threats to attack Iraq, Congress finally held hearings on the prospect of war. Senate Foreign Relations Committee Chairman Joseph Biden (D-Del.) predicts war, but hearings are not nearly enough. Congress must approve any presidential proposal to go to war.
Article 1, Sec. 8 (11) of the Constitution states: "Congress shall have the power ... to declare war." The president is commander-in-chief, but he must fulfill his responsibilities subject to the control of Congress.
After Sept. 11, Congress authorized the president to retaliate against any "nations, organization, or persons" he determined to be involved in the atrocity. However, Iraq was not involved in the September attacks. Former U.N. arms inspector Richard Butler says there is no evidence that Baghdad is arming al-Qaeda or other terrorist groups.
So the administration is emphasizing Iraq's refusal to accept United Nations inspections to deter development of weapons of mass destruction. Nonproliferation is a worthy concern, but the president has no authority to act for this reason. For that, he must go to Congress.
Today presidents prefer to make the decision for war themselves. In effect, they claim power comparable to the head of the Soviet communist party. As then-Defense Secretary Caspar Weinberger observed: Now who among the Soviets voted that they should invade Afghanistan? Maybe one, maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the Kremlin. Nobody else. And that is, I think, the height of immorality.
Now who among Americans has voted to attack, say, Iraq? Should one man in the White House make that decision, it would also be the height of immorality.
One of the Founding Fathers' criticisms of the British king was that he could unilaterally drag his nation into war. The Framers consciously rejected such a system. Still, some Americans opposed the proposed Constitution because they feared that it gave to the chief executive similar monarchical authority.
Don't worry, explained that great friend of executive power Alexander Hamilton. The president's power was "in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces ... while that of the British King extends to the declaring of war."
The Founders carefully drafted the Constitution because they feared that presidents would abuse their power as they do now. Explained James Madison in 1793, it is necessary to adhere to the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."
Constitutional convention delegates did change Congress' power from "make" to "declare" war, but they intended to give the president authority to respond to a sudden attack, not initiate a conflict. The president "is not safely to be entrusted with" the power to decide on war, said George Mason of Virginia. James Wilson observed that, "It will not be in the power of a single man, or a single body of men, to involve us in such distress."
Of course, there always will be potential gray areas in today's complicated world. But most cases, such as attacking Iraq, are clear. The president must go to Congress.
Are there any legitimate exceptions to the congressional war power? Some analysts would have Americans believe that, in the modern world, it is simply impractical to involve legislators in foreign policy-making.
No one thinks that 535 legislators should manage the ensuing war -- that's why the Constitution names the president commander-in-chief. But Congress must decide whether or not the president will have a war to run.
Some would expand the president's power to use the military for "defensive" purposes. Defensive means defensive, however. Constitutional convention delegate Roger Sherman of Connecticut explained that "the executive should be able to repel and not to commence war."
In an uncertain world, presidents also like to argue that they must be able to respond to unpredictable events. But there is almost always time to go to Congress, as even after the Sept. 11 attack.
There certainly is no hurry to make war on Iraq, especially since the administration itself says that it will not act before the election. And Congress could avoid tipping off Baghdad as to the timing of any strike by debating a conditional declaration, which would authorize the president to act under specified circumstances.
Today the favorite presidential excuse for claiming the right to unilaterally initiate war is: Everyone else does it. But the Constitution is no less binding on President Bush because other presidents have violated it.
Whatever the target and whatever the reason, American presidents should not risk the lives of young Americans in foreign adventures without Congressional consent. The decision of war and peace is far too important to leave to one man, however honest, smart or popular.
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