No Presidential War

Today the Senate Foreign Relations Committee convenes an important set of hearings on U.S. policy toward Iraq. With President Bush threatening the overthrow of Saddam Hussein and debate swirling within the Pentagon on the appropriate military strategy for accomplishing that task, it’s high time Congress got in on the act by debating the wisdom of taking military action.

But two days of Senate hearings with nongovernment experts on the what, when, how and why of changing the regime in Iraq can in no way substitute for action by Congress as a whole. Let’s be clear: Initiating action against Iraq would be an act of war—justifiable perhaps, but still an act of war. Before such an action is initiated, Congress has a duty to speak on the issue—by voting on whether to authorize the president to use force to remove Hussein from power.

Those who believe Bush can initiate such action on his own authority are profoundly mistaken. The notion that he can runs counter to the most fundamental tenets of our constitutional system. When, during the Constitutional Convention, a delegate moved to grant the president the power to initiate war, no delegate seconded the motion. Instead, it was mocked as an idea unbefitting a republic. And the delegates then moved to vest the power to declare war in Congress, the first branch of our government.

The claim that Bush can act preemptively because of a threat to the nation’s security is equally flawed and dangerous. Yes, the Framers understood that if the United States were attacked the president could order U.S. troops to take military action without congressional authorization.

But this is not the Iraqi contingency. It is manifestly not the case that we are talking about preempting an actual or imminent attack. At most we’re talking about the possibility of some future attack by Iraq—and even then the attack would likely be indirect, as Baghdad contemplates assisting terrorists in the killing of Americans.

That possibility poses a serious threat, to be sure, one that must be dealt with. But we cannot simply leave it up to the president to attack any country he sees as threatening. That would entail an unprecedented, even unconstitutional, expansion of presidential authority. And even if the case for military action does appear strong in this instance, once the precedent has been set it will be extremely difficult to limit the president’s authority to go to war in the future. (The same danger inheres, more generally, in Bush’s declaration of a new preemptive, strike-first policy with regard to rogue states and weapons of mass destruction, which also arrogates to the president the power to initiate use of force without prior congressional authorization.)

There is more merit to the claim that Congress, by virtue of its resolution passed days before the onset of the Gulf War in January 1991, has previously authorized presidential action against Iraq. But this is a weak reed to hold on to. It would turn that resolution into an open-ended declaration of war against Iraq. Moreover, it was the explicit intent of Congress, of then-President George H. W. Bush, and of the U.N. Security Council to restore the status quo ante in the region by ending the Iraqi occupation of Kuwait. It was explicitly not their intention to topple Hussein, as became clear when Bush ordered a halt to military action well short of Baghdad.

Rather than making arguments about why a congressional role is unnecessary or unwarranted, the Bush administration should welcome a debate and vote. Assuming, as seems likely, that he won such a vote, Bush’s hand would be greatly strengthened by a clear expression of U.S. political will. And if he cannot persuade Congress to authorize military action, then we have no business initiating war. That’s what it means to be a democracy.

Whether the administration pushes for congressional action or not, Congress itself has a somber constitutional responsibility not merely to debate the matter but to go on record—with a vote explicitly authorizing the use of force. Hearings of the kind the Senate has begun are an essential prelude to such a vote. But Congress cannot settle just for such hearings, or leave it to congressional leaders to offer a few sound bites on “Face the Nation” or “Meet the Press.” Before any military action is undertaken against Iraq, Congress must decide whether to declare war.