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Declare War before Waging War, Part 1


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LIKE MOST CRISES, the shocking attack on the World Trade Center caused a rush to government for protection. People seemed willing to accept almost any new restriction on liberty or new spending program in the name of fighting terrorism. Few seem willing to criticize the president should he decide to expand the war to Indonesia, Iraq, the Philippines, Syria, or Somalia — in the name of forestalling new terrorist attacks, of course.

Congress formally authorized the president to retaliate against any “nations, organization, or persons” he determined to be involved in the September 11 atrocity. But what about a nation, organization, or person that wasn’t?

This is, of course, the problem for hawks who want to wage war widely: there apparently is no evidence linking even the ugliest of regimes, such as Iraq, to the September attacks. If there were, the president would probably already have struck.

Now the administration seems to be developing a new justification for attacking Iraq: its refusal to accept United Nations inspections to ensure that it does not develop weapons of mass destruction. Nonproliferation is a worthy concern, though not necessarily one warranting war. After all, Baghdad has been out of compliance with the UN’s inspection regimen since 1998.

The U.S. Constitution is clear. Article 1, Section 8, states that “Congress shall have the power … to declare War.” The president is commander in chief, but he must fulfill his responsibilities within the framework established by the Constitution and subject to the control of Congress.

Today, of course, presidents prefer to make the decision for war themselves. President Bill Clinton took or considered military action in Bosnia, Haiti, Korea, Kosovo, and Somalia — with nary a nod to Congress. This former state attorney general and constitutional law professor announced in 1993, “I would strenuously oppose attempts to encroach on the president’s foreign-policy powers.” Adopting a novel form of constitutional interpretation, he opined, “The Constitution leaves the president, for good and sufficient reasons, the ultimate decision-making authority.”

No different was the first President George Bush. He was happy to have Congress vote on war with Iraq but only to support his decision to go in. Lawyers had advised him that he had the authority to act alone, he explained.

President Ronald Reagan invaded Grenada on his own authority. President Richard Nixon prosecuted and expanded the Vietnam War with the thinnest of legal authority, the fraudulently obtained Gulf of Tonkin Resolution.

One has to go back to President Dwight Eisenhower, a former general, to find a chief executive who acknowledged Congress’s decisive role in deciding on war.

He was right. Today the American president claims possession of power comparable to, if not greater than, that of the head of the Soviet Communist Party. As Caspar Weinberger, secretary of defense at the time, so rightly criticized the Evil Empire,

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.

What U.S. congressman has voted to attack, say, Iraq? Should one man in the White House make that decision, it would also be the height of immorality.

War and the Constitution

The Founders certainly would have thought so. One of their criticisms of the British king was that he could unilaterally drag his nation into war. President Abraham Lincoln, a “strong” president apt to act on his own authority, nevertheless reflected,

Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object.

The Americans wanted no such system for their new nation. The Constitution’s Framers, observed Lincoln, understood such promiscuous warmaking “to be the most oppressive of all kingly oppressions; and they naturally resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.” The contrary view, he concluded, “destroys the whole matter, and places our president where kings have always stood.”

Still, some Americans opposed the proposed Constitution because they feared that it gave to the chief executive authority similar to those possessed by the British monarch. Don’t worry, explained that great friend of executive power Alexander Hamilton. The president’s authority 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 and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.

Particularly curious is the willingness of modern presidents to work harder to get approval from the UN Security Council than from the Congress. Recognizing that he faced a Chinese and Russian veto, Bill Clinton did refuse to take the military action against Kosovo before the UN — no president seems to appreciate a negative vote in any legislative forum — but he nevertheless successfully sought the blessing of the UN for invading Haiti. From the enlightened members of the Security Council: China, Nigeria, Oman, and Pakistan, along with Djibouti, which has a total population less than that of a single congressional district, and Rwanda, still represented by a diplomat from the defeated Hutu regime.

The Founders wrote the Constitution as they did because they feared that presidents would otherwise act as they now act. As James Madison explained 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.”

Constitution Convention delegates did change Congress’s power from “make” to “declare” war, but the intent was to give the president authority to respond to a sudden attack, not initiate a conflict. When Pierce Butler of South Carolina suggested authorizing the chief executive to start wars, Elbridge Gerry of Massachusetts said that he “never expected to hear in a republic a motion to empower the executive to declare war.” The delegates rejected Butler’s motion.

They did so to make war less likely. The president “is not safely to be entrusted with” the power to decide on war, said George Mason of Virginia. He was in favor of “clogging rather than facilitating war.” James Wilson advocated a strong presidency but was pleased that the proposed constitution “will not hurry us into war.” Instead, “It is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.”

This is an issue on which the historic antagonists Alexander Hamilton and Thomas Jefferson agreed. Wrote the former, the president’s power was “in substance much inferior to” that of the British king. As he explained in the Federalist No. 75 regarding the making of treaties,

The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.

A bit more concisely, Jefferson observed, “We have already given … one effectual check to the dog of war by transferring the power of letting him loose.”

One only needs to look at succeeding American history to understand why delegate Wilson did not trust “a single man … to involve us in such distress.” Presidents have routinely deceived the public, lied to Congress, and manipulated the political system to take America into war. Obviously, Congress can be a weak reed upon which to rely — witness the Tonkin Gulf Resolution, as well as legislative passivity in the face of one illegal war after another. But a congressional vote, as before the Gulf War, at least ensures some debate and accountability. Especially if the conflict went bad, voters would know whom to blame.

War and the Constitution

With the constitutional record so clear, and the reasons for requiring a legislative vote so obvious, what argument can be made by today’s would-be monarchists? Harry Truman treated the Korean War as a “police action,” a three-year nonwar in which the U.S. military was apparently attempting to arrest common Chinese and North Korean criminals. Lyndon Johnson and Richard Nixon pointed to the Tonkin Gulf Resolution, to the extent that they bothered to defend their warmaking.

Ronald Reagan pled exigent circumstances in Grenada and his authority as commander in chief elsewhere. In advance of the Gulf War, George Bush stated, “I don’t think I need it” when asked about obtaining congressional approval. “Many attorneys,” he said, had “so advised me.”

Too bad he didn’t bother to read the Constitution himself, not that the result would necessarily have been any different. After all, Bill Clinton, who taught constitutional law before becoming Arkansas’s attorney general, also thought he possessed kingly powers. When criticized for committing to war in both Bosnia and Haiti, Clinton denounced “any attempts to encroach on” his prerogatives. A vote was okay, however, if it was guaranteed to be yes. Said Clinton, he would “encourage congressional authorization of any military involvement in Bosnia” and “welcome the support of the Congress” for invading Haiti. But, he added, “like my predecessors in both parties, I have not agreed that I was constitutionally mandated to get it.”

This is, of course, a willful misreading of the Constitution. There will always be potential gray areas; a world in which nuclear missiles can deliver destruction almost instantaneously and in which hijacked airliners can be turned into cruise missiles for transnational organizations is not a simple one.

But most cases are easy and unambiguous. Spend three years fighting China and North Korea? Go to Congress. Devote a decade to combatting South Vietnamese guerrillas and North Vietnamese regular forces? Go to Congress. Intervene in Lebanon in behalf of the minority Christian government? Go to Congress. Invade Grenada, Panama, and Haiti? Go to Congress.

Attack Iraq to free Kuwait? Go to Congress. Initiate military strikes against Bosnian Serb forces in the Balkan civil war? Go to Congress. Bomb Serbia to impose an artificial political settlement on Kosovo? Go to Congress. Hit Afghanistan to overthrow the Taliban? Go to Congress. Take on any number of other targets — Iraq, Somalia, et al. — in the name of fighting terrorism? Go to Congress.

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    Doug Bandow is vice president of policy at Citizen Outreach, the Cobden Fellow in International Economics at the Institute for Policy Innovation, a senior fellow at the Cato Institute, and serves as adjunct scholar for The Future of Freedom Foundation. He is a former special assistant to President Reagan; he is also a graduate of Stanford Law School and a member of the California and D.C. bars. BOOKS BY DOUG BANDOW: Leviathan Unchained: Washington’s Bipartisan Big Government Consensus (forthcoming) Tripwire : Korea and U.S. Foreign Policy in a Changed World (1996) Perpetuating Poverty : The World Bank, the Imf, and the Developing World (1994) The Politics of Envy : Statism As Theology (1994) The U.S.-South Korean Alliance : Time for a Change (1992) The Politics of Plunder : Misgovernment in Washington (1990) Beyond Good Intentions : A Biblical View of Politics (1988)