Sen. Dianne Feinstein, D-Calif., was not pleased with the
president's speech at West Point, in which he outlined the necessity for
pre-emption against nations or groups that threaten this country. "I think
this is a predicate for an attack on Iraq," the perceptive senator
explained, "and I'm very concerned about it. I think it would be a terrible
mistake for the United States unilaterally to attack Iraq, and to do so
without any congressional authorization."
Eleven years ago, we had a similar debate, about the same enemy,
with a president of the same name. The senior President Bush did not believe
that he needed Congress' authorization to make war on Iraq (though he
eventually did ask for and receive it). What does this President Bush think?
Does the constitutional grant of executive authority and the
title commander in chief give the president the necessary authority to make
war? If so, does that make the Congress' power to declare war a nullity?
Certainly the president's authority as commander in chief has
been broadly understood since the nation's founding. We've been involved in
hundreds of military conflicts, large and small. And declaring war turns out
to be the historical exception, rather than the rule. The United States has
formally declared war only five times: The War of 1812, the Mexican War, the
Spanish-American War, World War I and World War II. In more than 200 other
cases, the United States has made war or acted militarily without a formal
The founders gave the president latitude to use his war powers
because they understood that the nation could be attacked, in which case the
president would need to act with dispatch. An early draft of the
Constitution had given Congress power "to make war;" this was changed to
"declare" so as not to tie the president's hands in an emergency. Elsewhere,
the Constitution gives governors the power to defend themselves: "No state
shall, without the consent of Congress ... engage in war, unless actually
invaded, or in such imminent danger as will not admit of delay."
A pre-emptive attack on Iraq would certainly be self-defense on
our part, but it would also clearly not meet the case of an emergency use of
military power. Though urgently necessary, "regime change" in Iraq is not
the sort of war that seems to fall into the president's sole discretion.
Besides, there are strong political arguments in favor of asking Congress
for a declaration of war.
In the first place, the president needs the Congress' support
anyway. He must be able to make the case for funding such a war, and
Congress alone can do that. But a formal declaration also binds the Congress
and prevents the sort of weasely backtracking members of Congress engaged in
after Vietnam. They supported the war until it went south. They then tried
to shift blame by passing the War Powers Resolution, which implied that
Vietnam was solely a presidential screw-up.
What if Congress declines to declare war? This seems a long
shot. Even in 1991, when we were fighting merely to "liberate" Kuwait and
prevent Saddam from enjoying the fruits of aggression (our war aims were too
narrow, but that's a different column), a Congress dominated by Democrats
gave its approval (narrowly, it's true, but still).
Today, the nation is in a changed mood, though admittedly the
post 9-11 unity has sagged a bit. Still, large majorities of Americans favor
all of the common-sense steps one could propose: arm pilots, profile
passengers, diss Saudi Arabia, topple the Taliban, tighten border controls,
support Israel, destroy Saddam. One house is controlled by the Republicans,
and the other is almost evenly divided. Also, the stakes are far higher. The
president needs only to assemble one of his home-run speeches outlining the
nexus between Iraq and terrorists of various stripes. Only a fool could fail
to see the horrible possibilities if a terrorist should lay hands on a
weapon of mass destruction. And while we have fools in Congress, they do not
comprise a majority.
The president should ask for a declaration of war. The country
will back him, and the Congress will follow the people.