August 27, 2002
Bush Cutting Legal Corners: A Wartime Pattern
I can't claim to know whether the Washington Post story was an intentional leak or represented enterprising reporting. But the news that lawyers for the Bush administration believe that a 1991 congressional resolution authorizing President Bush's father to wage war in the Persian Gulf provides ongoing legal justification for the current administration to launch an attack on Iraq is deeply troubling.
Just for starters, Americans should be concerned about the ongoing viability of the U.S. Constitution (as if any politician cares much about such an anachronism), about practical aspects of any war, and about the prospects of American liberty in the face of unbridled executive power.
I know that one of the reasons for getting a law degree (besides having an attitude of virtual worship for an abstract concept called "the law" inculcated by people with a concept of the sacred somewhat different than you or I and who seem to have missed Otto von Bismarck's admonition about law and sausages) is to be able to argue with at least a modicum of persuasiveness and a wee bit of legal precedent for whatever position is in one's client's immediate interest. But this is such a strained interpretation of the Constitution, of the 1991 resolution, of the powers inherent in being commander-in-chief as to be almost eye-popping.
LEGALLY SUSPECT, PRACTICALLY FOOLISH
I talked with Roger Pilon, director of the Center for Constitutional Studies at the libertarian-oriented Cato Institute.
(Incidentally, I hope I can suggest without violating my own precepts too much, that the inclination in some libertarian quarters to dismiss Cato as an establishment tool and nest of slobbering warmongers is not one I share. I've noted often a tendency, shared by generally minority persuasions across the spectrum, to be more interested in attacking those relatively close to one in ideological terms than in going after genuine adversaries. Or maybe it has to do with the reason squabbles in college faculties are sometimes so bitter: the general political rule that the more pitiful the power involved the bloodier the battle.
Thus Leninists, Trotskyists and Stalinists used to reserve sharper barbs for one another than for capitalists, and conservatives, libertarians and various branches of libertarians are often more impassioned about heretics than about dedicated statists. In the current conflict both prowar and antiwar libertarians have traded really nasty comments. I'm inclined to think this is a constant in ideological politics that no amount of preaching can deter, but I'll try to avoid it as much as possible and concentrate more on criticizing dedicated enemies of freedom than on those with whom I have only a few disagreements. If this aside violates my own admonition I apologize for my mild hypocrisy.)
Anyway, Roger Pilon said that an attack without specific congressional authorization would be "constitutionally dubious and practically unwise." The U.S. Constitution makes the president commander-in-chief of U.S. armed forces but gives Congress the power to declare war. While a case can be made that a congressional authorization short of a formal Declaration of War might be sufficient for some military engagements, the idea that an authorization for war 12 years ago is still valid for notably different conditions stretches legal reasoning beyond the breaking point.
Mr. Pilon pointed out that the 1991 resolution was focused on getting Iraq out of Kuwait, a sovereign nation Saddam Hussein's regime had invaded and conquered. While a single "finding" in the preamble mentioned weapons of mass destruction, it didn't include all of the conditions imposed by United Nations resolutions for the simple reason that those resolutions were passed later. So a comment from an unnamed administration official to the effect that nobody thinks Iraq has fulfilled all the requirements imposed by U.N. resolutions is interesting but not especially relevant in a legal sense at least in regard to the fairly narrow question of whether the 1991 congressional resolution still provides authority for the current president to launch an attack.
As a practical matter, various authorities disagree about just how difficult or easy it might be to oust Saddam from power, and perhaps only after an invasion will we know who was right. But any invasion is bound to be a large-scale undertaking that is likely to take a while and involve at least some setbacks. Without at least a specific congressional resolution, says Mr. Pilon, "you invite the backbiting that will inevitably follow."
Republican Rep. Chris Cox, who came by the Register for an editorial board meeting Monday, put it a little differently. "I don't see how you can deal with future adversity, which is almost inevitable in a military conflict," he told us, "if you have empowered the entire political class to say 'I told you so,'" He thinks an executive decision to begin a war without a congressional resolution, at the very least, would be a serious mistake. Based on things he says he knows from confidential briefings, he said there are reasons to be seriously concerned about what Saddam Hussein is doing, but he's not ready to say that it justifies a war just yet.
Chris Cox wouldn't want to be classified as an early critic of military action, like House Majority Leader Dick Armey or former national security adviser Brent Scowcroft. When push comes to shove he will probably support the administration. But he wants to see it done right carefully considered, on the basis of concrete evidence and a fairly specific battle plan and exit strategy, by a Congress given time to air a full debate.
"When a pollster asks 'Would you like to see Saddam Hussein removed?' without offering specifics about how or at what cost, that doesn't tell you much that's useful about U.S. public opinion," Rep. Cox said. He thinks a full, informed debate in Congress would clarify the issues and bring more informed public opinion to bear on members. "Most members take these responsibilities seriously, will insist on good answers and listen to constituents once more concrete information has begun to clarify their real opinions," he said.
Having spent some time working in Congress seeing how they make sausages, I'm a bit more skeptical. But I hope Chris is right.
Chris Cox, who is a lawyer and worked in the White House Counsel's office during the Reagan administration, insisted on withholding a definitive opinion on the idea of the 1991 resolution providing justification for an attack now until he has read the actual text rather than a newspaper account or two. His initial reaction, however, is that the old resolution provides "the slenderest of reeds" as justification for military action today.
He reminded us that the decision in 1991 not to press on to Baghdad was that driving the Iraqis out of Kuwait was the extent of what the coalition (many of whose members helped to pay for the action) had agreed to support. And even though many Iraq soldiers were violating the directive that if they fled without weapons they would be left alone by taking weapons, many U.S. commanders (with a notable exception or two) were queasy about attacking those in retreat in what would have been a "turkey shoot."
Chris Cox doesn't think (subject to the unlikely possibility of being persuaded by a really powerful legal argument) that the 1991 resolution "provides a revolving line of credit with Congress," as he put it. He thinks that an attack without a full-scale congressional debate and resolution would be a mistake. And unlike some, he thinks that the Weinberger doctrine, crafted when Caspar Weinberger was Secretary of Defense during the Reagan administration, in 1984, offers a good set of guidelines for deciding whether to take military action.
THE WEINBERGER CAUTIONS
For those who may have forgotten, Weinberger offered six general rules when the U.S. is contemplating military action:
1. Commit only if our or our allies' vital interests are at stake.
2. If we commit, do so with all the resources necessary to win.
3. Go in only with clear political and military objectives.
4. Be ready to change the commitment if the objectives change, since wars rarely stand still.
5. Only take on commitments that gain the support of the American people and the Congress.
6. Commit U.S. forces only as a last resort.
To my mind none of those criteria have been met in the gabfest that might or might not lead to an invasion of Iraq. Sincere and intelligent people can disagree about some of them, and some of them might eventually be met even to my satisfaction (though I still might not support military action). But they offer a Congress that is serious a fairly good set of standards to which to hold administration strategists.
I would prefer a formal Declaration of War following an extensive public debate in which all sides are aired fully. As a practical matter that might be difficult for the administration, of course.
While there is some evidence that Saddam may have or is developing dangerous weapons, he has offered no immediate provocation such as invading a neighbor. So far, while there have been vague murmurings the administration has offered no solid evidence that Iraq was either connected to the Sept. 11 terrorist attacks or that it is currently harboring terrorists.
Perhaps one or the other or both is true. But the American people should have the opportunity to weigh concrete evidence before being asked to endorse an invasion of a foreign country.
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