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Originally Posted by Kerad 
"Leaving aside the whole point of Pelosi's statement..." 
There used to be a day when only Congress could declare war. Nowadays, we just get around that inconvenience by not calling it "war". |
No Declaration Needed
The president doesn't have to have Congress's approval to attack Saddam.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Sunday, July 28, 2002 12:01 a.m. EDT
Does President Bush need congressional authorization to attack Saddam Hussein's regime? Sens. Arlen Specter (R., Pa.) and Tom Harkin (D., Iowa) think so. They've recently introduced a resolution that would require the president to obtain Congress's permission before moving against Iraq. The resolution states that "Congress has the exclusive authority to declare war under Article I, Section 8 of the United States Constitution."
The Framers, however, distinguished between the power to "declare" war, which they indeed granted to Congress, and the power to "make" war, which was vested in the president as commander-in-chief of the armed forces. Based on this power alone, presidents throughout our history have initiated military action to protect vital American interests overseas. Given Saddam Hussein's past record, President Bush could clearly take the position that this power is sufficient to support action to end the threat posed by Iraq's weapons of mass destruction.
That said, the bounds of the president's war-making powers have been disputed for 200 years. The Constitution's principal authors, James Madison and Alexander Hamilton, themselves disagreed on this issue, clashing over George Washington's right to issue a "declaration of neutrality" in the war between Great Britain and France. It is not a dispute likely to be settled anytime soon--or ever.
For its part, Congress has periodically attempted to limit presidential war-making power, most notably in the 1973 War Powers Act. The constitutionality of this law, which requires the president to notify Congress when U.S. troops are deployed, and to withdraw those troops if no authorization is granted within 60 to 90 days, has never been adjudicated by the courts. The law has not stopped presidents, Republican and Democrat, from sending U.S. military forces into harm's way (in Libya, Grenada, Panama, Haiti and Serbia, among others) without specific congressional approval, although they have at times made notifications consistent with the law's provisions.
In the case of Iraq, Congress has already authorized the use of force. In early 1991, as U.S. and allied forces gathered in preparation for Operation Desert Storm, Congress passed Public Law 102-1. This law authorized the president to use the "United States Armed Forces" to enforce the United Nations Security Council resolutions against Iraq, both to drive it from Kuwait and "to restore international peace and security in the area."
Although Kuwait was liberated in 1991, peace and security have not been restored to the area. Saddam continues to menace the region and, in defiance of cease-fire he signed in 1991, is developing weapons of mass destruction. Like those original Security Council resolutions, Public Law 102-1 remains in full force. Pursuant to this statute, Presidents George H.W. Bush, Bill Clinton and now George W. Bush have continued to make regular reports to Congress about U.S. military activities against Iraq (the most recent report was made in January 2002), just as all three have presided over continuing military actions in Iraq. In 1998, for instance, President Clinton launched a major campaign, Operation Desert Fox, under Public Law 102-1's authority.
Therefore, the necessary legal basis already exists for an attack against Iraq. Whether the necessary political support for that assault exists is another question. Many in Congress are already convinced, but an open debate on Iraqi policy--leading to additional authorization to use force--would go a long way towards guaranteeing the support of Congress and the country the president will need for what is no small undertaking.
However, any congressional debate must be disciplined and must take into account the existing military and diplomatic realities. While our allies have started to signal some support for the administration's "regime change" policy, that support remains fragile. Although questions of timing and "exit strategies" are legitimate and obvious, protracted hearings during which senior administration officials are relentlessly grilled on the precise military plan to be followed, or the nature of a post-Saddam Iraq, could harm the military effort and the viability of the emerging international coalition.
In addition, any authorization passed by Congress should emphasize the continuity of U.S. efforts to restrain, contain and, now, to remove Saddam Hussein from power, based on the original U.N resolutions passed after his invasion of Kuwait. Those resolutions have never been fulfilled. The U.S. is fully within its rights, both under the U.N. Charter and the customary international law doctrine of anticipatory self-defense, to take military action against him--points that also should be emphasized in any further authorizing resolution by Congress.
On balance, it is better for President Bush to seek additional authorization from Congress. A purely "presidential" war may come to be viewed, correctly or not, more as the personal policy of Mr. Bush than of the U.S. at large. Should anything go wrong, Mr. Bush would be subject to intense criticism. A formal expression of congressional support, on the other hand, would bolster our international credibility and ease our coalition-building burdens. But if Mr. Bush does decide to seek additional backing on Capitol Hill, the lawmakers should realize that he is doing so out of choice, not necessity.
Messrs. Rivkin and Casey served in the Justice Department during the Reagan and first Bush administrations.
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