Jewish World Review August 9, 2002 / 1 Elul, 5762
Granted, American history contains many instances of presidents sending forces potentially or actually in harm's way without congressional approval. And there is a vast constitutional gray area in the assignment to the president of the power to "make" war and to Congress the power to "declare" war. Furthermore, the Constitution's letter and spirit have been reasonably read to give presidents broad latitude in coping with new technologies for sudden attack or low-intensity conflicts that blur normal understandings of war. However, the Iraqi matter is different.
The concluding words of President Roosevelt's terse (482 words) address to Congress on Dec. 8, 1941, were: "I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December seventh, a state of war has existed between the United States and the Japanese Empire."
Congress then did not so much declare war as acknowledge war's surprising eruption. Today the justifiable, but undeniably radical, policy of pre-emptive war compels Congress to play a dramatically different role. What is under way is without precedent in U.S. history. It is a methodical and semi-public preparation for a massive military operation to achieve an aim frequently proclaimed at the highest levels of government. The aim is to compel a change of regime in a nation that is intensely and increasingly menacing as it strains to achieve the capacity for attacking American interests.
A pre-emptive U.S. attack can be justified by the doctrine of "anticipatory self-defense." According to David Rivkin, Lee Casey and Darin Bartram, writing in National Review, that doctrine was enunciated by Hugo Grotius, author of the first great treatise on international law, after a British fleet attacked Spanish ships in harbors in 1587, the year before the Armada sailed for English waters. But precedent in international law is no substitute for congressional authorization.
Some say such authorization is not required because of the continuing vitality of the 1990 U.N. resolution responding to Iraq's invasion of Kuwait. But one reason the first President Bush stopped short of toppling Saddam is that the U.N. resolution did not encompass that. And a U.N. resolution is irrelevant to the constitutional requirement of congressional authorization for a major military operation beyond (in Madison's words) repelling sudden attack.
In January 1991, 47 of 57 Democratic senators, including the current chairmen of the Foreign Relations and Armed Services Committees (Joseph Biden and Carl Levin) voted against authorizing force to expel Iraq from Kuwait. Most of the 47 said sanctions would suffice to reverse Iraqi aggression, or at least the sufficiency of sanctions should be tested for a considerable time. Had this policy prevailed, Kuwait would be an Iraqi province.
Today most Democratic presidential aspirants serve in the legislative branch. It is in the interest of all voters, and especially of one who votes in Crawford, Texas, for those aspirants to be required to publicly debate and vote on this issue.
The Gulf War was brief; U.S. aims regarding Serbia were achieved from an altitude of 15,000 feet; air power has been masterful in Afghanistan; America enjoys a military supremacy not even Rome enjoyed. Hence Americans need to be reminded that war has rarely been, and will not usually be, so easy.
Hitler said that going to war is akin to entering a pitch-dark room. Eisenhower said war plans are fine - until the fighting starts. War of the sort being contemplated is not the sort of plunge into uncertainty that a prudent president wants to embark upon alone, even if the Constitution permitted that, which it does not.
A three-judge panel of the 4th U.S. Circuit Court of Appeals recently wrote of "our Constitution's commitment of the conduct of war to the political branches." Note the plural.
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