War Powerless
President Clinton wants to
send 4,000 American soldiers on a NATO peacekeeping mission to Kosovo. If all
goes as planned (though what goes as planned in the Balkans?), the troops will
spend the next three to five years disarming ethnic Albanian guerillas,
replacing Serbian policemen with ethnic Albanians, and generally restoring
order to the Godforsaken Yugoslavian province. The mission is a superb idea, a
noble effort to pacify the troubled region before war spills into the rest of
Europe.
It's also illegal. The
Clinton administration is "briefing" and "consulting" with Congress about the
mission but will not seek congressional approval. The administration insists
that it does not need such approval: "Ample constitutional precedent" (Bosnia,
Somalia, Haiti) proves that the commander in chief can conduct such forceful
operations without a congressional say-so. And Congress, it seems, agrees.
It is probably hopeless, and certainly unfashionable, to
remind the president and Congress that they are wrong. Few passages in the
Constitution have been more abused than Article 1, Section 8.11, which gives
Congress sole power "to declare war [and] grant letters of marque and
reprisal." Constitutional history is fuzzy on many matters, but on this it is
pellucid: The framers intended Congress, and Congress alone, to decide whether
and when to send troops into combat. (According to scholars, "letters of marque
and reprisal" are, roughly speaking, the 18 th century equivalent of
our small-scale military actions.) The framers allowed that the president could
authorize defense and immediate retaliation in the case of a surprise attack.
Otherwise, the authority belonged to Congress. Our elected representatives were
supposed to deliberate, slowly, on this most consequential of state actions.
The framers feared, above all, that a vainglorious executive would, if
unchecked, drag the country into foolish foreign entanglements.
This principle of
congressional supremacy guided the United States through World War II.
(Occasionally, Congress declared war before sending troops; mostly it didn't.)
But Congress' military influence began to wane as presidents grabbed more and
more power. The seminal event was the Korean War, which President Harry Truman
waged with U.N. approval and virtual silence from Congress. The shift continued
through Vietnam and the secret invasions of Cambodia and Laos. In 1973,
Congress reasserted itself by passing the War Powers Resolution over Nixon's
veto. Under the resolution (more commonly known as the "War Powers Act"), the
president has 90 days to obtain congressional approval of a military action. If
Congress does not vote aye, the troops must come home.
The War Powers Resolution has been a monument to
congressional fecklessness and presidential bullying. Every president has
called the law unconstitutional and proceeded as if it (and the Constitution)
didn't exist. Ronald Reagan, the grand champion of executive power, ignored the
war powers clause and resolution in Grenada, Lebanon, Libya, Central America,
and the Persian Gulf. (Reagan's advisers, usually so obeisant to "original
intent" when interpreting the Constitution, were more cavalier on the subject
of war powers.) George Bush skirted congressional war powers in Panama and
denied that they applied to the Iraq war. Clinton has ducked them in Haiti,
Somalia, Bosnia, and Iraq. (When administration officials cite "ample
constitutional precedent," it is this "ample," but hardly constitutional,
record, to which they are referring.) Presidents have euphemized away the
seizure of congressional authority, minimizing their uses of force as "surgical
strikes," "police actions," or "immediate reprisals." They have cited the
pressures of the Cold War: At a time when any regional flare-up might provoke a
nuclear confrontation, they argued, America needed a single, firm hand on the
tiller. As Reagan said, "You can't have 535 secretaries of state."
Congress grumbled but
didn't stop the erosion of its power. Whenever a president dispatched troops or
missiles, congressional Democrats and a few Republicans would pipe up that the
president was ignoring the War Powers Resolution. The president would argue it
didn't apply. Congress would gripe a bit more, and by that time the troops
would be on their way home. The resolution has become a convenient cover: It
allows Congress to complain that the president is breaking the law without
forcing Congress to take any real responsibility. If the operation goes awry,
Congress can load all the blame on the president. If the operation goes well,
the president takes all the credit anyway. "There's nothing in it for
Congress," says Eric Alterman, author of Who Speaks for America?: Why
Democracy Matters in Foreign Policy . "No one is going to make his career as
a great foreign policy senator." The political adage states that politics stops
at the water's edge. In fact, politics doesn't even start. Congress just isn't
interested enough.
This time around, Congress isn't even bothering to invoke
the war powers clause or resolution. Both the rescue of Kosovo and the ongoing
bombardment of Iraq are undoubtedly military operations as contemplated by the
Constitution. Both expose U.S. troops to hostilities, and neither is an
immediate retaliation for an attack on the United States. The Iraq bombing has
been going on for two months, and the administration has not signaled any
willingness to abide by the War Powers Resolution. The Kosovo engagement is
scheduled for three years, but the administration has no intention of ever
putting it to congressional vote. (Congress has never held a War Powers
Resolution vote on the Bosnia mission, which began in 1995.) Even so, Congress,
perhaps exhausted by impeachment or simply supportive of the operations, has
been notably silent. "There is war powers fatigue," says Brookings Institution
scholar Richard Haass.
The fact remains that the
congressional surrender of war powers is anti-democratic and anti-republican.
The most important duty of the state--the power to wage war--is now held by one
man and his unelected advisers. Members of Congress, who were elected to
deliberate and make these nasty decisions, have abdicated the duty the framers
intended them to have. Their abdication deprives the rest of the nation of the
chance to hear and participate in debate. It is no coincidence that the Iraq
war, the only recent military engagement preceded by a vigorous national
debate, was also an operation that Americans supported wholeheartedly. Do
Americans even know where Kosovo is?
Congressional Democrats and Republicans have cooperated in
abandoning war powers. The indifference of congressional Republicans is not
surprising: Since the days of Reagan, they have generally endorsed the
executive's war-making authority. The Democrats' indifference is more
demoralizing. Democrats, after all, endorsed Congress' war powers when Reagan
and Bush were sending in the Marines. Why don't they now? The president, too,
seems hypocritical. After all, he fervently participated in the anti-Vietnam
movement, and the War Powers Resolution was a great triumph of that movement.
Now that he owns the executive authority he once feared in Nixon, Clinton has
cavalierly dismissed constraints on his power.
Congressional war powers are not an entirely
lost cause. A few stubborn legislators are still shouting about it. Sen. Joe
Biden, D-Del., wants to amend the War Powers Resolution to give it more teeth.
He will hold hearings if he can get Senate Foreign Relations Committee Chairman
Jesse Helms, R-N.C., to agree to them. Rep. Tom Campbell, R-Calif., an
international law professor, has championed congressional war powers for years.
Last year he tried and failed to invoke the War Powers Resolution for the
Bosnia mission. Now he and Rep. Barney Frank, D-Mass., are circulating a letter
to colleagues that they will send to the president next week. The letter
insists that "The Constitution compels you to obtain authority from Congress
before taking military action against Yugoslavia." So far, Campbell and Frank
have enlisted only 34 co-signers, and the administration shows no signs of
paying attention.
You can see why the administration wouldn't listen.
A congressional debate and vote on whether we should intervene in Kosovo could
be a fiasco. The intervention could be stopped by a block of isolationist
senators and House members. Our failure to intervene might well cause the war
to escalate and spread. But the absence of such a debate and vote may be worse.
The Constitution is most necessary when it is most inconvenient.
