Jewish World Review August 29, 2002 / 21 Elul, 5762
It was a particularly contemptible case of vice paying homage to virtue when Hitler spoke those words -- "returning fire," indeed -- in the first hours of the Second World War. But the virtue -- having a casus belli before going to war -- is so universally acknowledged that even Hitler paid homage to it. Immediately before Hitler attacked Poland, the SS staged a provocation -- a "Polish" attack on a German radio station near Poland's border, a sham that included corpses of German "victims" -- actually, concentration camp inmates shot by the SS.
This is pertinent to America's debate about preemptive war against Iraq, not because the administration's aims are disreputable or its contemplated justifications are meretricious, but because the administration is conscientiously groping for a way to do something morally defensible and to do it in a way consistent with norms of international and constitutional practice. Without guidance from any precedent in this republic's history, the administration is improvising diplomatic and constitutional etiquette for launching preventive war without what has normally been recognized as a casus belli.
James Baker, secretary of state during the Persian Gulf War, argues the administration's case -- almost. He says Iraq's regime should be changed and neither covert action nor Iraqi opposition forces will suffice, so ground forces "sufficient . . . to occupy the country (including Baghdad)" will be required. But Baker also says the administration should seek a casus belli -- a U.N. resolution Saddam Hussein would defy, one authorizing unrestricted inspections and "all necessary means to enforce it."
The administration should not have recourse to such an ersatz casus belli. The administration reiterates that Hussein is a megalomaniac given to irrational miscalculations. That he possesses weapons of mass destruction. That he has used them against foreign and domestic enemies. That he is rushing to obtain more such weapons. That regime change is imperative for the future of a region in which vital U.S. interests are implicated. That al Qaeda is active in Iraq, so regime change is integral to the war on terrorism. And that time is not on America's side.
Having repeatedly rung this fire bell, the administration should not characterize the media's and the public's fascination with the prospect of war -- again, war of a sort without American precedent -- as a "frenzy" that is "silly." Rather, it should emphatically close the circle of its reasoning by stipulating this: The uniquely virulent constellation of four factors -- Hussein's character, the terrorists' proclamation of war against the United States, the various intersections of Iraqi policy with the culture and apparatus of terrorism, and the technologies of mass destruction developed in the last 57 years -- constitute a new kind of casus belli. But it is one that reflects a reasonable application of traditional diplomatic norms to novel conditions.
Having made this case, the administration should solicit -- indeed, insist upon -- affirmation of its case by Congress. The prudential reasons for seeking this are obvious. The constitutional requirement to seek it should be obvious.
Yet some conservatives are construing into nonexistence the Constitution's provision for involving Congress. If their arguments prevail -- if the administration successfully asserts that the provision does not apply even to this case -- the Constitution will have been amended without recourse to the amendment provisions.
These conservatives say, correctly, that presidents have often used military force without congressional authorization. But they also say the Constitution's text must be construed in the light of this "Constitution of practice." But no history of unfettered presidential discretion regarding much smaller undertakings establishes that such discretion extends to a decision to embark on a large engagement that does not involve repelling a surprise attack and does not require strategic surprise (in signaling war, the administration has been as stealthy as a calliope).
These conservatives also say the Constitution is merely permissive regarding Congress and war -- Congress may declare war any time it wishes -- but presidents, too, have constitutional permission to do, militarily, whatever they can get away with. Meaning whatever they can force Congress, by fait accompli, to fund, thereby "consenting" to it.
The administration has arrived at an unprecedented yet defensible policy but has not committed itself to seeking the sort of sustaining ratifications that are particularly vital when acting beyond precedents. It should remember Secretary of State Dean Rusk's warning. Sadder but wiser after Vietnam, he said that any important foreign policy decision made without Congress is inevitably in the subjunctive mood. That is no mood in which to make war.
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