Why the President Does Not Legally Need Congress's Permission to Go to War (But Is Wise to Seek It)





Mr. Turner co-founded the Center for National Security Law at the University of Virginia Law School in 1981 and worked for many years in the Senate, State and Defense departments. His books include two volumes on the War Powers Resolution and the recently published, The Real Lessons of the Vietnam War, which he coedited with John Norton Moore.

Eyebrows were raised over reports the White House Counsel's office had advised President Bush the Constitution did not require him to obtain approval from Congress before using force to bring about a regime change in Iraq.
     But the president's lawyers were right. Perhaps more importantly, the president was also right when he decided to seek a formal resolution of approval.
     Article II, Section 3, of the Constitution vests in the president both the power and the duty to "take care that the laws be faithfully executed," and Article VI affirms that treaties are part of the "supreme law of the land."
     When Congress overwhelmingly approved the 1945 U.N. Participation Act (UNPA), the unanimous House report explained that the ratification of the U.N. Charter "resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder." Quoting the unanimous Senate report urging charter ratification, the House report added that the use of U.S. armed forces to enforce the charter "would not be an act of war but would be international action for the preservation of the peace," and thus "the provisions of the charter do not affect the exclusive power of the Congress to declare war."
     A UNPA amendment proposed by Sen. Burton Wheeler requiring congressional authorization before U.S. troops could be sent into combat to enforce the charter received fewer than 10 votes.
     The primary purpose of the United Nations was set forth clearly in Article 1(1) of its charter: "to take effective collective measures for the prevention and removal of threats to the peace." The Security Council was given "primary responsibility" for maintaining peace, but Sen. Arthur Vandenberg — who helped negotiate the charter — asserted "there would have been no charter" had the right of individual and collective self-defense not been expressly preserved in Article 51.
     Vandenberg told the Senate that if the Security Council proved unable to act — for example, because of a veto — individual members could still confront lawbreakers, saving the U.N. "from final impotence."
     Surely no serious person doubts that Saddam remains a threat to the peace. His prior acts of international aggression have resulted in the death or serious injury of perhaps a million people, and he has repeatedly used illegal weapons of mass destruction (WMD) against both his neighbors and his own people.
     The reason the Security Council conditioned the 1991 cease-fire upon the destruction of all Iraqi WMD programs was because they knew Saddam would remain a threat to the peace if his claws were not pulled. To emphasize the importance of this requirement, after the cease-fire the Security Council repeatedly emphasized that Resolution 678, which authorized the use of force "to restore peace and security to the area," remains in force.
     Without American leadership, few world leaders have the stomach to risk upsetting Saddam Hussein or other international terrorists he has been supporting.
     The behavior of Congress since Vietnam (where, by passing a law in May 1973 making it illegal for the president to use military force to resist communist aggression, Congress virtually snatched defeat from the jaws of victory and set the stage for the slaughter of millions and the enslavement of tens of millions in Stalinist tyranny) provides little assurance that America will not bail once again if the going gets rough.
     As a constitutional matter, the president in my view does not need formal authorization from Congress. But few understand these esoteric constitutional issues, and by bypassing Congress the president would have risked distracting the nation from the solemn business at hand with a procedural quarrel in which he would be widely perceived as a lawbreaker.
     Equally importantly, the president is unlikely to be able to win this conflict without additional funds, forces or equipment that must come from Congress.
     The fear, based upon other post-Vietnam experiences, is that congressional cowardice and partisanship might lead to a divisive debate and perhaps conditions on any resolution of approval that could undermine any chance of deterrence, endanger U.S. forces, and impede operational success. By section 2(c) of the War Powers Resolution, Congress even today pretends to deny the president his clear constitutional power to protect American civilians abroad from terrorist attack.
     Even former Senate Majority Leader George Mitchell acknowledged that the 1973 statute is unconstitutional and undermines America's ability "to effectively defend our national security," but Congress remains unwilling to repeal it and indeed referenced it repeatedly in last September's authorization of the war on terrorism.
     The highly partisan 1983 war powers debate over American peacekeepers in Beirut convinced Syria's foreign minister that the Americans were "short of breath." Although that deployment was extended 18 months, only two Senate Democrats supported President Reagan and a shift in four votes could have terminated the deployment.
     After the vote, even Republican lawmakers remarked that the issue could be "reconsidered" if there were further U.S. casualties, and shortly thereafter U.S. intelligence intercepted a message between Muslim terrorist units that if they could kill 15 more Marines "the rest will leave." Days later, 241 Marines were murdered in their sleep by a terrorist bomb, and the rest did leave. Why not kill Americans when Congress virtually places a bounty on them by suggesting that is the easiest way to get America to withdraw?
     When Saddam Hussein invaded Kuwait in 1990, many Democrats argued we should "give sanctions a chance" and implied President Bush was a warmonger. The following January 85 percent of Senate Democrats voted to deny the president any authority to resist Saddam. The president was finally permitted to use force, but the resolution was carefully crafted to exclude authority to go beyond expelling Iraqi forces from Kuwait — and a shift of three votes in the Senate could have denied Mr. Bush even that limited authority. Specifically excluded, for example, was the power to use force to "implement" Security Council Resolution 678, which authorized the use of force not just to expel Iraqi troops from Kuwait but also "to restore international peace and security in the area."
     With such a narrow margin of support by a Congress infamous for cutting off funds when crises got serious in places like Indochina, Angola and Central America, Saddam would have been a fool not to gamble that the arrival of a few body bags back in America would provoke a new legislative debate and another cutoff of funds.
     The president's best bet now would be to ask for an immediate congressional debate and a record vote by the middle of October, so the American people will have an opportunity to pass judgment on the behavior of their representatives in the November elections.
     The polls strongly suggest that the American people understand the serious stakes involved. Legislators who lack the courage to stand united with our president, or attempt to place their own partisan ambitions above the welfare of the nation, will not have a cost-free out. Those who refuse to stand firm in the war against terrorism may well find themselves looking for a new line of employment when Congress reconvenes in January.
     


This article first appeared in the Washington Times and is reprinted with permission of the author.


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More Comments:


Alec Lloyd - 9/19/2002

Ask the North Vietnamese how close we came. Hint: it isn't what they teach at Berkeley.


Pierre S Troublion - 9/19/2002


Mr Turner is living in Rambo-Fantasyland if he really believes
that, after eight years of massive U.S. military intervention including napalming of villages, defoliating forests, and wasting 50,000 American lives, it was somehow the U.S. Congress's fault that Hanoi won the war.

A similar sort of half-witted juvenile thinking seems to be at work when, in a discussion about who has the power to decide commit U.S. troops to battle, he cites two passages in the U.S. Constitution but ignores Article 1, section 8: "Congress shall have the power...to declare war."


Pierre S Troublion - 9/19/2002


Mr Turner is living in Rambo-Fantasyland if he really believes
that, after eight years of massive U.S. military intervention including napalming of villages, defoliating forests, and wasting 50,000 American lives, it was somehow the U.S. Congress's fault that Hanoi won the war.

A similar sort of half-witted juvenile thinking seems to be at work when, in a discussion about who has the power to decide commit U.S. troops to battle, he cites two passages in the U.S. Constitution but ignores Article 1, section 8: "Congress shall have the power...to declare war."