Be silent; they see it, if we don't


On August 28 the Christian Science Monitor ran an informative piece by Howard LaFranchi on the illegality of a presidential war on Iraq: "A tussle over who can legally declare war." The administration says that it can launch a war without a declaration of war by Congress. It attempts to base its arguments on a 1991 congressional resolution that authorized (or attempted to authorize) the Gulf War. But that seems about as ridiculous as attacking Germany on the basis of the 1941 declaration of war.

Here's an excerpt:

"The administration's position is simply wrong," says Michael Glennon, a professor of international law at Tufts University's Fletcher School of Law and Diplomacy in Medford, Mass. He says there's no doubt that congressional authorization for the 1991 Gulf war was "extinguished" the day Iraq signed terms of a ceasefire — whether it complied with the terms of cessation of hostilities or not.

Next the administration tries to claim authority from Congress's Sept. 14, 2001, resolution supporting the war on terrorism. Professor Glennon says, "That argument may be correct, but only if Iraq can be linked to events of Sept. 11." Glennon's interpretation is clearly correct, as revealed when we consult the congressional resolution itself: "To authorize the use of United States armed forces against those responsible for the recent attacks launched against the United States."

Moreover, the State Department's interpretation of the resolution specifically ruled out full-scale wars: "The resolution authorizing the use of military force is based on provisions in the 1973 War Powers Resolution that give the president limited authority to use military force in specified situations, but requires congressional authority to expand action into a full-scale war."

James Madison, known as "the Father of the Constitution," explained the war provision of the Constitution in his "Political Observations" (1795):

Of all the enemies to liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies.... A delegation of such powers [to the President] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted. (http://www.lawandfreedom.com/special/Liberties.htm )

Now, all types of exceptions have been made over the years that allowed a President to launch military actions without the need to declare war — little wars, "police actions," quick responses, and so on. But if a war entailing an attack on a country to remove its government and establish a new one through military occupation does not require a congressional declaration of war, then the constitutional provision about declaring war has no meaning or effect whatsoever. And one must suppose that James Madison had no understanding of the document that he wrote.

Let me cap off my commentary with a citation from that great saint of the U.S. political system, Abraham Lincoln, who confronted an argument of Power similar to the one made by the Bush administration. (It helps to know that, as a Whig in good standing, Lincoln opposed Democrat James Knox Polk's Mexican War, which Polk deliberately manipulated his way into.)

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such a purpose, and you allow him to make war at his pleasure.

... Study to see if you can fix any limit to his power in this respect.... If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us," but he will say to you, "Be silent; I see it, if you don't." (The Writings of Abraham Lincoln, ed. A. Lapsley, vol. 2, pp. 51-52)

August 30, 2002

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