Cutting Legal Corners: A Wartime Pattern
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
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
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.
SUSPECT, PRACTICALLY FOOLISH
talked with Roger Pilon, director of the Center for Constitutional
Studies at the libertarian-oriented Cato Institute.
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
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
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.
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.
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."
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.
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.
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.
spent some time working in Congress seeing how they make sausages,
I'm a bit more skeptical. But I hope Chris is right.
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.
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."
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
those who may have forgotten, Weinberger offered six general rules
when the U.S. is contemplating military action:
Commit only if our or our allies' vital interests are at stake.
If we commit, do so with all the resources necessary to win.
Go in only with clear political and military objectives.
Be ready to change the commitment if the objectives change, since
wars rarely stand still.
Only take on commitments that gain the support of the American people
and the Congress.
Commit U.S. forces only as a last resort.
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.
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.
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
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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