No Intervention in Iraqi Civil War Without Congressional Authorization

Posted: Jun 18, 2014 12:01 AM
No Intervention in Iraqi Civil War Without Congressional Authorization

On Jan. 12, 1991, with 370,000 U.S. troops already deployed near Iraqi-occupied Kuwait, and a U.N. deadline for Saddam Hussein to withdraw from that country only three days away, the U.S. Congress voted on whether to authorize President George H.W. Bush to use force to reverse Iraq's annexation of its neighbor.

The Senate voted 52 to 47 for war -- with Republican Sen. Chuck Grassley of Iowa among those voting no and Democratic Sen. Al Gore of Tennessee among those voting yes.

The House voted 250 to 183 for war -- with three Republicans voting no and 86 Democrats voting yes.

The senior Bush then launched a congressionally authorized -- and, thus, constitutional -- war.

Eleven years later, President George W. Bush sought congressional approval for a second war against Iraq.

On Oct. 10, 2002, the House voted 296 to 133 to authorize it. Six Republicans voted no; 81 Democrats voted yes. The next day, on a 77-to-23 vote, the Senate also authorized war. Democratic senators Hillary Clinton, John Kerry, Harry Reid and Joe Biden all voted yes.

Nine years later, on Dec. 14, 2011, President Obama announced he had successfully completed that war and all U.S. troops were leaving Iraq.

"Indeed, everything that American troops have done in Iraq -- all the fighting and all the dying, the bleeding and the building, and the training and the partnering -- all of it has led to this moment of success," said Obama. "Now, Iraq is not a perfect place. It has many challenges ahead. But we're leaving behind a sovereign, stable and self-reliant Iraq, with a representative government that was elected by its people."

"This is an extraordinary achievement, nearly nine years in the making," Obama said of the way he ended that war.

Two and a half years later, Iraq is in the midst of a sectarian civil war that pits a Shiite-dominated government against a Sunni terrorist group that sprang from al-Qaida.

On Monday, Obama notified Congress "that up to approximately 275 U.S. military personnel are deploying to Iraq to provide support and security for U.S. personnel and the U.S. Embassy in Baghdad."

The Defense Department has moved an aircraft carrier, a guided-missile cruiser, a guided-missile destroyer and an amphibious transport dock ship into the Persian Gulf.

These ships, says Rear Adm. John Kirby, the DOD spokesman, give "the commander in chief additional options to protect American citizens and interests in Iraq, should he choose to use them."

But does Obama have the constitutional authority to use them? Yes and no.

If these forces are needed to protect Americans in Baghdad or elsewhere in Iraq -- as military forces were needed on Sept. 11, 2012 to protect Americans in Benghazi, Libya -- Obama can use them to defend and extract our people.

But he cannot unilaterally decide to intervene in Iraq's civil war.

As has been noted in this column before, the Framers of the Constitution intended to give Congress control over the use of military force except when the president needs to "repel a sudden attack."

The war power came up in the Constitutional Convention on Aug. 17, 1787. The language in the draft presented to the convention said Congress shall have the power "to make war."

Pierce Butler of South Carolina suggested an alternative. "He was for vesting the power in the president," James Madison recorded in his notes on the proceedings.

With considerable passion -- and wisdom -- the convention rose up against this idea.

Madison and Elbridge Gerry offered an amendment. They "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."

"The Executive shd. be able to repel and not to commence war," agreed Roger Sherman of Connecticut.

"Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war," Madison recorded in his notes.

George Mason "was agst giving the power of war to the Executive, because not safely to be trusted with it," Madison reported.

The convention sided with Madison, Gerry, Sherman and Mason. It voted to give the president the power to repel an attack but not initiate U.S. involvement in a war.

As the history of the last quarter century demonstrates, a Constitution that vests Congress with authority over war may not always make our political leaders wiser in the use of force, but it does make them accountable.

Obama ignored the constitutional authority of Congress when he unilaterally intervened in Libya's civil war. Congress must not let him usurp that power again.