In war, a resolution

Terry Jeffrey
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Posted: Dec 21, 2005 12:05 AM

In his recent defense of the Iraq War, including his televised address Sunday night, President Bush has exemplified the quality Winston Churchill made the first moral of his history of World War II: "In war, resolution."

 But Republicans would do well to consider how their president and our country might be doing today had Bush not adhered three years ago to an important constitutional principle: Before war, get a congressional resolution.

 Back in 2002, the White House Counsel's Office advised President Bush he could invade Iraq without authorization from Congress. Explaining this argument, then-White House Spokesman Ari Fleischer quoted a letter that then-White House Counsel Alberto Gonzales sent members of Congress on April 18, 2002. "A formal declaration of war or other authorization from the Congress is not required to enable the president to undertake the full range of actions that may be necessary to protect our national security," wrote Gonzales.

 An Aug. 26, 2002, story in The Washington Post quoted a senior administration official: "We don't want, in getting a resolution, to have conceded that one was constitutionally necessary."

 Bush rejected this thinking. "At the appropriate time," he said on Sept. 4, 2002, "this administration will go to the Congress to seek approval necessary to deal with the threat."

 If Bush had gone to war without the "approval necessary," it might have proved impossible for him to prosecute the war to a successful conclusion. Without the resolution in Congress authorizing the war then, there would be far less resolution in Congress to finish the war now.

 The furious post-invasion debate over bad intelligence on Iraq would have been even more furious. As casualties mounted and the popularity of the war waned, senior Democrats could have led the antiwar movement from inside Congress without having to account for why they voted to authorize the war and why, when they did so, they outlined the perceived threat of Saddam Hussein in the same terms as the president.

 Some House Democrats probably would have agitated for impeachment.

 Rather than nominate a presidential candidate who was forced to flip and flop as he explained his vote for the war, the Democrats may have nominated an expressly antiwar candidate -- and he might have won.

 Today, rather than making slow, hard-won progress toward a stable post-Saddam Iraq, we might be deep in the process of withdrawing, leaving behind an Iraq veering toward civil war or worse.

 President Bush's wisdom in seeking congressional authorization for the war in Iraq was rooted in the wisdom of the Founding Fathers. In the future, Republicans who say they believe in an originalist interpretation of the Constitution ought to use President Bush's example to firmly re-establish the constitutional precedent that, in this republic, war requires congressional authorization.

 The history is clear.

 In his comprehensive study, "Presidential War Power," author Louis Fisher points out that the original draft of the Constitution said Congress shall have the power "to make war."

 The notes from the Constitutional Convention reveal that when this language was debated, Pierce Butler of South Carolina did suggest that the power ought to be removed from Congress and given to the president, "who will not make war but when the nation will support it."

 But then James Madison of Virginia and Elbridge Gerry of Massachusetts "moved to insert 'declare,' striking out 'make' war; leaving to the executive the power to repel sudden attacks." Gerry explained that he "never expected in a republic a motion to empower the executive alone to declare war."

 George Mason of Virginia, who agreed with the Madison-Gerry amendment, said he "was against giving the power of war to the executive."

 The amendment passed. Fisher quotes President Washington's 1793 explanation of it: "The Constitution vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure."

 When George W. Bush sought congressional "approval" for the war in Iraq, he may not have been following the advice of his lawyers, but he was following the letter of the Constitution. Because he did, the enduring wisdom embraced by the Framers in the 18th century has had a positive impact on one of the first conflicts of the 21st. Conservatives should not forget it.