to War Ignores U.S. Constitution
Senator Byrd delivered the following remarks as the Senate opened debate on Senate Joint Resolution 46, a resolution authorizing the President to use whatever force he deems necessary in Iraq or elsewhere. Listen to portions of these remarks in .mp3 format.
The great Roman historian, Titus Livius, said, "All things will be clear and distinct to the man who does not hurry; haste is blind and improvident."
"Blind and improvident," Mr. President. "Blind and improvident." Congress would be wise to heed those words today, for as sure as the sun rises in the east, we are embarking on a course of action with regard to Iraq that, in its haste, is both blind and improvident. We are rushing into war without fully discussing why, without thoroughly considering the consequences, or without making any attempt to explore what steps we might take to avert conflict.
The newly bellicose mood that permeates this White House is unfortunate, all the moreso because it is clearly motivated by campaign politics. Republicans are already running attack ads against Democrats on Iraq. Democrats favor fast approval of a resolution so they can change the subject to domestic economic problems. (NY Times 9/20/2002)
Before risking the lives of American troops, all members of Congress – Democrats and Republicans alike – must overcome the siren song of political polls and focus strictly on the merits, not the politics, of this most serious issue.
The resolution before us today is not only a product of haste; it is also a product of presidential hubris. This resolution is breathtaking in its scope. It redefines the nature of defense, and reinterprets the Constitution to suit the will of the Executive Branch. It would give the President blanket authority to launch a unilateral preemptive attack on a sovereign nation that is perceived to be a threat to the United States. This is an unprecedented and unfounded interpretation of the President's authority under the Constitution, not to mention the fact that it stands the charter of the United Nations on its head.
Representative Abraham Lincoln, in a letter to William H. Herndon, stated: "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 purpose - and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, 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 provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."
If he could speak to us today, what would Lincoln say of the Bush doctrine concerning preemptive strikes?
In a September 18 report, the Congressional Research Service had this to say about the preemptive use of military force:
The historical record indicates that the United States has never, to date, engaged in a "preemptive" military attack against another nation. Nor has the United States ever attacked another nation militarily prior to its first having been attacked or prior to U.S. citizens or interests first having been attacked, with the singular exception of the Spanish-American War. The Spanish-American War is unique in that the principal goal of United States military action was to compel Spain to grant Cuba its political independence.
The Congressional Research Service also noted that the Cuban Missile Crisis of 1962 "represents a threat situation which some may argue had elements more parallel to those presented by Iraq today – but it was resolved without a "preemptive" military attack by the United States."
Article I, Section 8, of the Constitution grants Congress the power to declare war and to call forth the militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Nowhere in the Constitution is it written that the President has the authority to call forth the militia to preempt a perceived threat. And yet, the resolution before the Senate avers that the President "has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Miliary Force" following the September 11 terrorist attack. What a cynical twisting of words! The reality is that Congress, exercising the authority granted to it under the Constitution, granted the President specific and limited authority to use force against the perpetrators of the September 11 attack. Nowhere was there an implied recognition of inherent authority under the Constitution to "deter and prevent" future acts of terrorism.
Think for a moment of the precedent that this resolution will set, not just for this President but for future Presidents. From this day forward, American Presidents will be able to invoke Senate Joint Resolution 46 as justification for launching preemptive military strikes against any sovereign nations that they perceive to be a threat. Other nations will be able to hold up the United States as the model to justify their military adventures. Do you not think that India and Pakistan, China and Taiwan, Russia and Georgia are closely watching the outcome of this debate? Do you not think that future adversaries will look to this moment to rationalize the use of military force to achieve who knows what ends?
Perhaps a case can be made that Iraq poses such a clear and immediate danger to the United States that preemptive military action is the only way to deal with the threat. To be sure, weapons of mass destruction are a 20th century horror that the Framers of the Constitution had no way of foreseeing. But they did foresee the frailty of human nature and the inherent danger of concentrating too much power in one individual. That is why the Framers bestowed on Congress, not the President, the power to declare war.
As James Madison wrote in 1793, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man...."
Congress has a responsibility to exercise with extreme care the power to declare war. There is no weightier matter to be considered. A war against Iraq will affect thousands if not tens of thousands of lives, and perhaps alter the course of history. It will surely affect the balance of power in the Middle East. It is not a decision to be taken in haste, under the glare of election year politics and the pressure of artificial deadlines. And yet any observer can see that that is exactly what the Senate is proposing to do.
The Senate is rushing to vote on whether to declare war on Iraq without pausing to ask why. Why is war being dealt with not as a last resort but as a first resort? Why is Congress being pressured to act now, as of today, 33 days before a general election when a third of the Senate and the entire House of Representatives are in the final, highly politicized, weeks of election campaigns? As recently as Tuesday (Oct. 1), the President said he had not yet made up his mind about whether to go to war with Iraq. And yet Congress is being exhorted to give the President open-ended authority now, to exercise whenever he pleases, in the event that he decides to invade Iraq. Why is Congress elbowing past the President to authorize a military campaign that the President may or may not even decide to pursue? Aren't we getting ahead of ourselves?
The last UN weapons inspectors left Iraq in October of 1998. We are confident that Saddam Hussein retained some stockpiles of chemical and biological weapons, and that he has since embarked on a crash course to build up his chemical and biological warfare capability. Intelligence reports also indicate that he is seeking nuclear weapons, but has not yet achieved nuclear capability. It is now October of 2002. Four years have gone by in which neither this administration nor the previous one felt compelled to invade Iraq to protect against the imminent threat of weapons of mass destruction. Until today. Until 33 days until election day. Now we are being told that we must act immediately, before adjournment and before the elections. Why the rush?
Yes, we had September 11. But we must not make the mistake of looking at the resolution before us as just another offshoot of the war on terror. We know who was behind the September 11 attacks on the United States. We know it was Osama bin Laden and his al Qaeda terrorist network. We have dealt with al Qaeda and with the Taliban government that sheltered it – we have routed them from Afghanistan and we are continuing to pursue them in hiding.
So where does Iraq enter the equation? No one in the Administration has been able to produce any solid evidence linking Iraq to the September 11 attack. Iraq had biological and chemical weapons long before September 11. We knew it then, and we know it now. Iraq has been an enemy of the United States for more than a decade. If Saddam Hussein is such an imminent threat to the United States, why hasn't he attacked us already? The fact that Osama bin Laden attacked the United States does not, de facto, mean that Saddam Hussein is now in a lock and load position and is readying an attack on the United States. In truth, there is nothing in the deluge of Administration rhetoric over Iraq that is of such moment that it would preclude the Senate from setting its own timetable and taking the time for a thorough and informed discussion of this crucial issue.
The President is using the Oval Office as a bully pulpit to sound the call to arms, but it is from Capitol Hill that such orders must flow. The people, through their elected representatives, must make that decision. It is here that debate must take place and where the full spectrum of the public's desires, concerns, and misgivings must be heard. We should not allow ourselves to be pushed into one course or another in the face of a full court publicity press from the White House. We have, rather, a duty to the nation and her sons and daughters to carefully examine all possible courses of action and to consider the long term consequences of any decision to act.
As to separation of powers, Justice Louis Brandeis observed: "the doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power." (Myers v. United States, 1926)
No one supports Saddam Hussein. If he were to disappear tomorrow, no one would shed a tear around the world. I would not. My handkerchief would remain dry. But the principle of one government deciding to eliminate another government, using force to do so, and taking that action in spite of world disapproval, is a very disquieting thing. I am concerned that it has the effect of destabilizing the world community of nations. I am concerned that it fosters a climate of suspicion and mistrust in U.S. relations with other nations. The United States is not a rogue nation, given to unilateral action in the face of worldwide opprobrium.
I am also concerned about the consequences of a U.S. invasion of Iraq. It is difficult to imagine that Saddam Hussein, who has been ruthless in gaining and staying in power, would give up without a fight. He is a man who has not shirked from using chemical weapons against his own people. I fear that he would use everything in his arsenal against an invasion force, or against an occupation force, up to and including whatever chemical, biological, or nuclear weapons he might still have. Iraq is not Afghanistan, impoverished by decades of war, internal strife, and stifling religious oppression. Though its military forces are much diminished, Iraq has a strong central command and much greater governmental control over its forces and its people. It is a large country that has spent years on a wartime footing, and it still has some wealth.
Nor do I think that the Iraqi people would necessarily rise up against Saddam Hussein in the event of a U.S. invasion, even if there is an undercurrent of support for his overthrow. The Iraqi people have spent decades living in fear of Saddam Hussein and his network of informers and security forces. There has been no positive showing, in the form of riots or large and active internal opposition groups, that popular sentiment in Iraq supports a governmental overthrow or the installation of a democratic or republican form of government. There is no tradition of democracy in Iraq's long history. There is, however, a natural instinct to favor the known over the unknown, and in this instance, the U.S. is the unknown factor. The President and his cabinet have suggested that this would be a war of relatively short duration. If that is true, which I doubt, but if it were, why would the Iraqi populace rush out to welcome the U.S. forces. In a few weeks, they might have to answer to the remnants of Saddam Hussein's security forces. A prudent Iraqi would just put his or her head under the bedcovers and not come out until the future became clear.
A U.S. invasion of Iraq that proved successful and which resulted in the overthrow of the government would not be a simple effort. The aftermath of that effort would require a long term occupation. The President has said that he would overthrow Saddam Hussein and establish a new government that would recognize all interest groups in Iraq. This would presumably include the Kurds to the north and the Shiite Muslims to the south. Because the entire military and security apparatus of Iraq would have to be replaced, the U.S. would have to provide interim security throughout the countryside. This kind of nation-building cannot be accomplished with the wave of a wand by some fairy godmother, even one with the full might and power of the world's last remaining superpower behind her.
To follow through on the proposal outlined by the President would require the commitment of a large number of U.S. forces forces that cannot be used for other missions, such as homeland defense for an extended period of time. It will take time to confirm that Iraq's programs to develop weapons of mass destruction are well and truly destroyed. It will take time to root out all elements of Saddam Hussein's government, military, and security forces and to build new government and security elements. It will take time to establish a new and legitimate government and to conduct free and fair elections. It will cost billions of dollars to do this as well. And the forces to carry out this mission and to pay for this mission will come from the United States. There can be little question of that. If the rest of the world doesn't want to come with us at the outset, it seems highly unlikely that they would line up for the follow through, even though their own security might be improved by the elimination of a rogue nation's weapons of mass destruction. So, if the Congress authorizes such a mission, we must be prepared for what will follow.
The Congressional Budget Office has already made some estimations regarding the cost of a possible war with Iraq. In a September 30 report, CBO estimates that the incremental costs – the costs that would be incurred above those budgeted for routine operations – would be between $9 billion to $13 billion a month, depending on the actual force size deployed. Prosecuting a war would cost between $6 billion and $9 billion a month. Since the length of the war cannot be predicted, CBO could give no total battle estimate. After hostilities end, the cost to return U.S. forces to their home bases would range between $5 billion and $7 billion, according to CBO. And the incremental cost of an occupation following combat operations varies from about $1 billion to $4 billion a month. This estimate does not include any cost of rebuilding or humanitarian assistance. That is a steep price to pay in dollars, but dollars are only a part of the equation.
There are many formulas to calculate cost in the form of dollars, but it is much more difficult to calculate cost in the form of deaths. Iraq may be a weaker nation militarily than it was during the Persian Gulf war, but its leader is no less determined and his weapons are no less lethal. During the Persian Gulf War, the United States was able to convince Saddam Hussein that the use of weapons of mass destruction would result in his being toppled from power. This time around, the object of an invasion of Iraq is to topple Saddam Hussein, so he has no reason to exercise restraint.
The questions surrounding the wisdom of declaring war on Iraq are many and serious. The answers are too few and too glib. This is no way to embark on war. The Senate must address these questions before acting on this kind of sweeping use of force resolution. We don't need more rhetoric. We don't need more campaign slogans or fund raising letters. We need – the American people need – information and informed debate.
Before we rush into war, we should focus on those things that pose the most direct threat to us those facilities and weapons that form the body of Iraq's weapons of mass destruction program. The United Nations is the proper forum to deal with the inspection of these facilities, and the destruction of any weapons discovered. If United Nations inspectors can enter the country, inspect those facilities and mark for destruction the ones that truly belong to a weapons program, then Iraq can be declawed without unnecessary risk or loss of life. That would be the best answer for Iraq, for the United States, and for the world. But if Iraq again chooses to interfere with such an ongoing and admittedly intrusive inspection regime, then and only then should the United States, with the support of the world, take stronger measures.
This is what Congress did in 1991, before the Persian Gulf War. The United States at that time gave the United Nations the lead in demanding that Iraq withdraw from Kuwait. The U.S. took the time to build a coalition of partners. When Iraq failed to heed the UN, then and only then did Congress authorize the use of force. That is the order in which the steps to war should be taken.
Everyone wants to protect our nation and our people. To do that in the most effective way possible, we should avail ourselves of every opportunity to minimize the number of troops we put at risk. Seeking once again to allow the United Nations inspection regime to peacefully seek and destroy the facilities and equipment employed in the Iraqi weapons of mass destruction program would be the least costly and most effective way of reducing the risk to our nation, provided that it is backed up by a credible threat of force if Iraq once again attempts to thwart the inspections. We can take a measured, stepped approach that would still leave open the possibility of a ground invasion if that should become necessary, but there is no need to take that step now.
I urge restraint. President Bush gave the United Nations the opening to deal effectively with the threat posed by Iraq. The UN embraced his exhortation and is working to develop a new, tougher inspection regime with firm deadlines and swift and sure accountability. Let us be convinced that a reinvigorated inspection regime cannot work before we move to any next step, and let us if we must employ force, employ the most precise and limited use of force necessary to get the job done.
Let us guard against the perils of haste, lest the Senate fall prey to the dangers of taking action that is both blind and improvident.
Robert C. Byrd represents West Virginia in the United States Senate.
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