At Princeton University on May 10, President Bush made an important pronouncement which received little attention. He talked about the presidency, Congress, and the Constitution. He particularly touched on the role of the president in foreign policy, especially as it may lead to war.
We have just been through a war for which Congress voted at almost the last moment. Now, however, Bush said that he had an “inherent right” to use the UN resolution to take the country into the war, without congressional authorization. The passage in which he made this claim holds the key to what Congress and the country may expect from him in similar circumstances:
This does not mean that the Executive may conduct foreign business in a vacuum. I have great respect for Congress, and I prefer to work cooperatively with it wherever possible.
Though I felt after studying the question that I had the inherent power to commit our forces to battle after the UN resolution, I solicited congressional support before committing our forces to the Gulf war. So, while a President bears special foreign policy obligations, those obligations do not imply any liberty to keep Congress unnecessarily in the dark.
The italics are mine. They give away what Mr. Bush understands the real relationship with Congress to be. In effect everything depends on what the president chooses to do. He will decide where it is possible to work cooperatively with Congress, and he will decide whether it is necessary to keep Congress in the dark.
This extraordinarily devious passage was clearly composed with the greatest care to give with one hand and take away with the other. Behind it is an unstated but ever-present premise: foreign policy is the sole province of the president, even if it leads to war. Congress has a part to play only if the president, in his superior wisdom, permits it to play a role. He will not work with it if he thinks it is impossible to do so, and he will keep it in the dark if he thinks it necessary.
In another part of his speech Mr. Bush said that presidents “must preserve, protect, and defend the Constitution.” If so, it is necessary to ask: What is there in the Constitution that permits presidents to treat Congress so cavalierly? Should a president do anything he pleases in his relations with Congress, to confront it with accomplished facts and to manipulate public opinion before he shows his hand to Congress?
The issue here is far larger than Congress. A president who keeps Congress in the dark keeps the American people in the dark. If Congress is not trusted by a president, the people do not have a chance.
Since World War II, presidents have led the country into three major wars.1 Two of them, Korea and Vietnam, were disappointing or disastrous. It remains to be seen what the final verdict on the Gulf War will be. Whatever it is, such wars cannot be regarded with equanimity, especially if presidents were largely responsible for them.
One attempted justification for presidential wars is that there have been as many as two hundred of them in our history.2 Relatively minor as these may have been, together with Korea, Vietnam, and now the Gulf, they indicate that presidential wars are not occasional aberrations; they represent most of our wars—and all of them since World War II.
Yet, the Framers would be flabber-gasted to learn that presidents wage wars as if the Constitution had never been written. Recent constitutional studies have gone over the ground again without finding that presidents have anything like the powers they have claimed. The question did not start with George Bush, but it may well have reached a point of no return with him.
Bush himself tried to give the problem some historical perspective. He spoke at some length and with much feeling about a threat to presidential power. The “most common challenge,” he said, “comes from a predictable source”—members of the United States Congress. This was their sin:
Although our founders never envisioned a Congress that would churn out hundreds of thousands of pages worth of reports and hearings and documents and laws every year, they did understand that legislators would try to accumulate power. James Madison, your son—Princeton’s son—warned that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” That was Mr. Madison speaking, not President Bush speaking.
Yale’s son should have known better than to cite Princeton’s son in this connection. Bush seemed to think that Madison was referring to the same kind of Congress that has been churning out hundreds of thousands of pages of reports and documents. In fact, Madison’s words appeared in No. 48 of The Federalist.3 They were written and published in 1788. Madison was not referring to the Congress under the Constitution, which had not yet been ratified; he had in mind, as he clearly stated, the state constitutions of Virginia and Pennsylvania under the old Articles of Confederation. If Bush had mentioned the source, it would have been clear that “the legislative department” Madison had referred to was not the one that was created by the Constitution.
It might be more to the point today to cite what Madison wrote in No. 47 of The Federalist:
The accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.4
The accumulation of all powers legislative, executive, and judiciary is just what is now being claimed for the presidency in foreign policy. In any case, Madison was then concerned about something that no longer holds true—the disparity between the numbers in the legislature and those in the executive and judiciary. When Madison became secretary of state in 1800, the staff was made up of seven clerks—which he soon cut down to four.5 The personnel of the Department of State today—not to speak of the Executive as a whole—is many times that of the legislature and judiciary. Thus Madison’s fears in The Federalist about the numerical advantage of the legislature must be put into its historical context to be understood.
It would also help to know the historical context of those two hundred presidential wars that come up so often in this connection. The prototype is the story of Thomas Jefferson and the Barbary pirates in 1801. The moral seems to be that if a presidential war was good enough for Jefferson, it should be good enough for us in all circumstances.
The story has an altogether different lesson to teach us. Washington and Adams had continued the British practice of paying tribute to the pirates of the Barbary States (Algiers, Morocco, Tunis, and Tripoli). When the pasha of Tripoli increased his price for immunity from blackmail and sent cruisers to attack American shipping, Jefferson ordered some frigates into the Mediterranean to protect it. One Tripolitan cruiser was captured by a small US schooner, Enterprise, but was let go. Jefferson told what happened next in a message to Congress:
Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries.6
This statement by Jefferson that the Constitution did not permit him to go beyond “the line of defense” brought down on him a fierce attack by Alexander Hamilton:
The first thing in it which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews.7
Whatever the merits of the case, the incident shows, if anything, that Jefferson was extraordinarily solicitous of the need for Congress to declare war; he was willing to take defensive action on his own but to go no further. The precedent which Jefferson set cannot be used—as it has been used countless times—to justify presidential wars of the Korean or Vietnam type; it is strictly applicable to limited, small-scale, defensive encounters such as the Barbary action.
As for Madison, he was the first to give a war his name. In 1812, he resolved to fight against Britain’s policy of barring all commerce with Europe in its war against Napoleonic France. The war tore the country apart. The opposition to it in New England was so great that call-ups were massively disobeyed; sedition was openly advocated. It was “Mr. Madison’s War” to all those who opposed it. To make peace in 1815, Madison was forced to drop all the demands for which the war had been fought and go back to the status quo ante. Historians have not regarded the war as his finest hour.
Even his admiring biographer Irving Brant did not approve of some of his methods: “President Madison actually undertook, in a democratic republic with divided powers, to execute a policy that was appropriate only to an autocracy or a strong ministerial government like that of Great Britain.”8 His latest biographer, Drew R. McCoy, is far less critical, commenting on his “republican restraint as president and commander in chief.”9 Whatever the verdict, the war itself was soon celebrated as a “second war of independence” by virtue of standing up to Great Britain again, even without a victory, and an “era of good feeling” followed.
That war was followed by “Mr. Polk’s War.” The war against Mexico in 1846 was President James K. Polk’s personal crusade to obtain Texas and California. Even a historian so little censorious as Samuel Eliot Morison recognized that Polk “baited Mexico into a war with the United States in which California was the big pile of blue chips.” 10 Albert Gallatin, the secretary of the treasury under both Jefferson and Madison, the last surviving statesman present at the creation, demanded, “What shall we say of a war iniquitous in its origin, and provoked by ourselves, of a war of aggression, which is now publicly avowed to be one of intended conquest?”11 A young congressman made his maiden speech in opposition to the war with Mexico. He voted in favor of a resolution declaring that the war was “unnecessarily and unconstitutionally commenced by the President.” The young congressman was Abraham Lincoln.12
Lincoln’s actions in the first months of the Civil War have been used to justify presidential wars. But Lincoln was faced with an internal rebellion, not an external threat. He acted to resist an attack, not to send armed forces half way around the world. Lincoln was responding to an unprecedented type of civil war, and his proclamation calling out the militia to suppress the revolt cannot be used to justify presidential wars of very different character without indiscriminately disregarding the difference between a sudden civil war and deliberate intervention in a Korean-type war.13
In 1898, the United States engaged in a peculiar war with Spain. It was waged by the administration of President William McKinley, ostensibly on behalf of Cuban independence. When it was over, Cuba was made into a quasi-protectorate, and Hawaii, Puerto Rico, and the Philippines, which had nothing to do with the original war aim, were annexed by the United States. In the Philippines, which had been promised independence, a native rebellion took two years to suppress. The United States for the first time became a colonial power, though it was so squeamish that the term “dependencies” was preferred. McKinley himself wavered but was too weak to resist pressure from the imperialist wing of the Republican party. The philosopher William James was appalled. For James and others, a line had been crossed, the best of the nation’s traditions betrayed. James grieved that “the manner in which the McKinley administration railroaded the country into its policy of conquest was abominable, and the way the country puked up its ancient soul at the first touch of temptation, and followed, was sickening.”14
If Albert Gallatin and Abraham Lincoln were not proud of the war with Mexico and William James was not proud of the war with Spain, it is not necessary for anyone to be proud of every American war. Yet, as late as the two world wars in the first half of the twentieth century, one thing in the Constitution held firm. Whatever the responsibility of presidents may have been for the War of 1812, the Mexican War, and the Spanish-American War, they went to Congress for declarations of war. There was no exception to this rule in a major conflict until the Korean War in 1950. The president who waged an undeclared war on his own for the first time was Harry S. Truman. He also set the precedent of using a UN resolution, which President Bush claims gave him the prerogative to go to war with or without a declaration by Congress.
Truman’s precedent now appears to be so contagious that it is worth looking into more closely. Why did Truman refuse to ask Congress to declare war in 1950?
Truman’s first move was to deny that the United States was at war at all. In a press conference on June 29, 1950, he said that combat operations in Korea were merely a “police action,” undertaken for the United Nations. This terminological masquerade did not last long, as US forces found that they were engaged in a real war, and it became necessary to institute a draft to enlarge the army, and to come to Congress for a $10 billion rearmament program.
Once Truman had sent US forces into action, no senator directly opposed it, but a few objected that it had been done without congressional approval. In this period, Republicans made the constitutional argument against Truman’s action. The most serious criticism came from the “Mr. Republican” of the period, Senator Robert A. Taft of Ohio. His words make strange reading in view of the position taken by the present Republican president:
I merely do not wish to have this action go by with the approval of the Senate, if it is what it seems to me, namely, a complete usurpation by the President of authority to use the Armed Forces of this country. If the incident is permitted to go by without protest, at least from this body, we would have finally terminated for all time the right of Congress to declare war, which is granted to Congress alone by the Constitution of the United States.15
As the war dragged on and casualties increased, the Republican leader in the Senate, Kenneth S. Wherry of Nebraska, declared:
The President is waging war in Korea. It is an undeclared war into which the United States has been taken by the unilateral action of the President without consulting the Congress. The President’s action… is an outright violation of the letter and the spirit of the Constitution of the United States.16
But the Republicans were divided. Senator William F. Knowland of California, of the party’s extremist wing, wanted an all-out war against North Korea and saw no need for a congressional declaration. Senator Scott Lucas, the Democratic spokesman, took up Taft’s challenge and replied that Truman’s action was justified by more than one hundred historical precedents, including Jefferson’s initiative against the Barbary pirates in 1801. The Democrats and their Republican allies enabled Truman to have his way by default.17
Yet the present Republican president might find the Taft-Wherry speeches strange reading. His arguments in favor of presidential war-making come right out of what the Democrats said in 1950.
Truman himself related that he had thought, “I ought to go before Congress and address a special session.” But he changed his mind because “Korea was a United Nations matter; and our country should not make an individual approach to it.”18 It did not seem to matter that Congress, and not the president alone, should decide what approach to take before going to the United Nations, if war was at stake. Later, he enlarged on his role as if the president could now decide on all matters dealing with foreign policy. In lectures at Columbia University he declared of the president: “As specified in the Constitution, he’s the maker of foreign policy.”19 No one seems to have asked him where in the Constitution the president is made “the maker of foreign policy.”
Dean Acheson, who as secretary of state gave Truman’s crude decisions a degree of superficial polish, is on record with two versions to explain why Congress was not drawn in for a declaration of war.
Acheson later claimed that his recommendation to Truman had been to go before Congress for a Joint Resolution. Truman agreed but was dissuaded by Senator Lucas on the ground that “things are now going well.” Lucas said: “Many members had suggested to him that the President keep away from Congress and avoid debate.” Acheson later explained that he had refrained from pushing the resolution because “the thing to do was to get on and do what had to be done as quickly and effectively as you could, and if you stopped to analyze what you were doing, you immobilized yourself and [tried] to answer a lot of questions which were unanswerable. All you did was to weaken and confuse your will and not get anywhere.” On another occasion, Acheson pooh-poohed the idea that the war had been inevitable: it had been Truman’s choice.20
Acheson’s other version is somewhat different. Toward the end of his first meeting with Congressional leaders on June 27, 1950, Senator Alexander Smith of New Jersey asked the President whether he thought it would be a good idea for Congress to pass a resolution approving what the President had already done. Truman replied that he would think about it. After the meeting Acheson advised Truman not to do it, because the troops were already engaged—in the other version, he had allegedly advised Truman to do it. Acheson recalled:
It seemed to me if, at this time, action was pending before the Congress, by which hearings might be held, and long inquiries were being entered into as to whether or not this was the right thing to do, or whether the President had the authority to do it, or whether he needed Congressional authority for matters of that sort—we would be doing about the worst thing we could possibly do for the support of our troops and for their morale.
I felt that we were in this fight—and it was a desperate fight—and we had better concentrate all our energies in fighting it and not in trying to get people to formally approve what was going on.
Truman accepted Acheson’s advice. When he came to tell this story, Acheson was not so sure that they had done the right thing.
This may well, in the light of events, have been the wrong decision. If the Congress had promptly and without debate passed a resolution endorsing vigorously what had happened, this, of course, would have been fine, and it would have nipped in the bud all the statements about the Korean War being Mr. Truman’s war and so on.21
And so “Mr. Truman’s War” joined the long procession started by “Mr. Madison’s War.” What is noteworthy about both of Acheson’s versions is his lightmindedness about constitutional requirements. His only concern seems to have been expediency. A president decided on a war and then decided against going to Congress for authorization because he had already decided without it. In 1951, Acheson also made the first assertion that Congress could not interfere with the president in his use of the armed forces “in carrying out the broad foreign policy of the United States.”22 This was a radical perversion of the original understanding that the president could use the armed forces only as Congress directed, unless the country was suddenly attacked.
Mercifully, Acheson made no attempt to hide behind the UN. The fighting was done overwhelmingly by US forces under US command, acting in the name of the UN, not by the UN. About 85 percent of the non-Korean troops came from the United States. The UN merely designated the United States as its surrogate—a critical departure from the original intent of Articles 46 and 47 to make the Security Council and its Military Staff Committee control the use of force against acts of aggression.23
Any resort to the UN to justify a US war runs up against the original bill passed by Congress to implement the UN Charter. Section 6 of this bill authorized the president to negotiate a special agreement with the Security Council, subject to the approval of Congress, providing for the exact numbers and types of armed forces to be made available on behalf of a UN action. It went on to say that the president did not need to get the authorization of Congress, provided that the only forces used were those already authorized by Congress. 24 As Edward S. Corwin put it, “American implementation of the Charter and hence its ultimately binding interpretation for the United States is based on the national legislative power, not on the treaty-making power or on presidential prerogative.”25
Yet the Korean war seems to have served as a precedent for presidential prerogative in the Gulf War. If we may trust Bob Woodward, who gives a highly circumstantial account of a meeting in the Cabinet Room on January 8, 1991, the Deputy Attorney General William P. Barr told President Bush: “The situation most closely resembling the current crisis was the Korean War, when Truman acted without Congress under a United Nations resolution somewhat similar to the current one.”26 This report reads as if Woodward had access to a detailed account of the meeting.
As Brian Urquhart, the distinguished former UN Under-Secretary-General, pointed out, Resolution 678 of November 29, 1990, “went further down this divergent road” by authorizing member states to use force against Iraq after January 15, 1991. Urquhart explained the increased divergence by forty years of cold war, which had prevented agreement on how to carry out the provisions of the Charter.27 Whatever the sins of the past, an opportunity was missed to live up to the plain language of Article 47, Section 3, to make the Military Staff Committee responsible “for the strategic direction of any armed forces placed at the disposal of the Security Council.” In both the Korean and Gulf wars, the UN adapted itself to the United States, not the United States to the UN.
Bush moved against Iraq by proclaiming a general doctrine against the use of force to change borders, whatever the circumstances. This Bush doctrine uncannily resembles the Truman doctrine in the way it converts a single, concrete case—Greece for Truman, Kuwait for Bush—into an all-purpose recipe to be applied everywhere in the world.28
It is not as if serious thought has not been given to the questions raised by this history. Constitutional scholars have pondered them for generations. Two recently published studies continue the tradition and have much to teach us on these very matters in dispute.
Does the president have the constitutional right to take the country into war without a declaration by Congress? Can he substitute a UN resolution for a congressional declaration? Where is it stated that the president has an “inherent right” to commit our forces to battle? In what sense can it be said that the president alone “makes” foreign policy?
Constitutionalism, Democracy, and Foreign Affairs is a magisterial essay by Louis Henkin, Professor Emeritus of Columbia University and the doyen of constitutional scholars. His book of no more than 125 pages, based on lectures delivered at the University of Michigan Law School in 1988, is the distillation of long service in the State Department and thirty years of academic life.
Henkin is not an optimist. He sadly notes
the Iran-contra miasma; followed with pained incomprehension the struggles of President and Congress over Nicaragua and her neighbors; heard the President and the Senate shout disagreement over presidential authority to interpret (reinterpret) the Anti-Ballistic Missile (ABM) Treaty; and watched the United States slip into the Persian Gulf and the Iran-Iraq War.
And concludes that
the country has not verged on constitutional crisis, but few have been moved to declare that the constitutional arrangements for conducting the foreign affairs of the United States are worthy of celebration.
In view of these misgivings, he asks the critical question: “Is it time for a checkup and some rehabilitation” of the Constitution?
In the end, Henkin is a worried traditionalist or, as he might prefer, constitutionalist. He goes no further than to see a need for a “constitutional construction that will recommit us to the principles of constitutionalism with which we began and reflect the democracy we have become.” Meanwhile, he ponders the problems that have arisen. One is the use made of the “Commander-in-Chief clause” to claim excessive war powers for the president.
During the ensuing two hundred years, Presidents have prominently and frequently claimed large powers by virtue of their constitutional designation as Commander in Chief. There is little support for such claims in text or original intent. Strictly, “the President shall be Commander in Chief of the Army and Navy” is a designation, or assignment, not a grant of power (though some powers may be necessarily implied in the function)…. The evidence is that in the framers’ contemplation, the armed forces would be under the command of the President but at the disposition of Congress. Principally, the President would command the forces in wars declared by Congress. As an exception, the framers agreed to leave to the executive “the power to repel sudden attacks”; authorization by Congress might not be possible to obtain promptly, or at all, and could be assumed. There is no evidence that the Framers contemplated any significant independent role—or authority—for the President as Commander in Chief when there was no war…. The President’s designation as Commander in Chief, then, appears to have implied no substantive authority to use the armed forces, whether for war (unless the United States were suddenly attacked) or for peacetime purposes, except as Congress directed.
Yet, of all the foreign affairs functions given to the president in the Constitution, the only one that conceivably implies any war powers is the “Commander-in-Chief clause.”29 Presidents have made wars all but inevitable by using this clause, as in the recent case of President Bush, who ordered hundreds of thousands of the armed forces to a theater of war on his own authority, giving Congress little choice but to leave the forces stranded in the Saudi desert or go along with the President’s action.
Henkin does not approve of this presidential tactic of cornering Congress into approving what has already been done:
The President has acquired authority to use the forces that Congress puts at his command for foreign policy purposes. But the Constitution clearly denies him the power to initiate war and therefore must deny him authority to do what is likely to bring us into war.
He recognizes that a long transition favoring the presidency enabled Bush to do what was likely to bring us into war:
As our Presidents’ “foreign relations power” took root and grew, they found themselves wearing two hats. In limited, uncertain steps the President as Commander in Chief began to carry out what the President as foreign affairs executive determined. In time, precedents accumulated and Presidents gained confidence and claimed more authority. Beginning early and continuing to this day, in several hundred instances of varying scope and significance, Presidents have deployed the armed forces of the United States for foreign policy purposes determined by the President on his own authority.
Henkin does not exempt Congress from responsibility for this de facto perversion of the Framers’ intentions. This is one case in which “original intent” backfires on its presidential proponents.
Congress contributed to the steady growth of presidential power. Congress early recognized and confirmed the President’s control of day-to-day foreign intercourse, and the resulting monopoly of information and experience promoted presidential claims of expertise and a congressional sense of inadequacy. Congress generally acquiesced even in the President’s deployment of forces, and the Senate in his executive agreements. Later, a growing practice of informal consultations between the President and congressional leaders disarmed them as well as members of Congress generally and helped to confirm presidential authority to act without formal congressional participation…. It has sometimes been asserted, and even assumed, that the President himself can determine the foreign policy of the United States, can communicate that policy as “sole organ,” can implement it as “the executive,” and can enforce it as Commander in Chief.30
Thus Henkin is caught in a familiar dilemma. He can find no constitutional warrant for presidents refusing to accept congressional legislation in the field of foreign affairs, as Nixon and his successors have done by refusing to abide by the War Powers Resolution of 1973, the single most important effort by Congress to prevent presidents from ignoring it.
History supports few limitations on the power of Congress in foreign affairs other than the Bill of Rights, and history gives no support for any presidential authority to flout congressional legislation in the matters we are addressing. The President would have to find foreign affairs and Commander in Chief powers that give the President power exclusive of Congress, and there is little basis for that in text, original intent, or history.
He believes that we cannot constitutionally grant undefined, uncircumscribed, unchecked, unbalanced, “plenary” powers to the president in foreign affairs:
Constitutionalism implies limited government. For our subject, that means that the Constitution should be expounded so that there can be no extraconstitutional government, that, in principle and in effect, no activity of government is exempt from constitutional restraints, not even foreign affairs: government cannot exercise unlimited authority in any large area—not even in foreign affairs…. For us, as for the framers, no branch of government has authority that is so large as to be essentially undefined and uncircumscribed, that is “plenary,” that is not checked, not balanced, not even the President, not even in foreign affairs…. Constitutionalism is not mesmerized by invocations of efficiency, by extravagant claims of “necessity” (even when clothed in irresistible formulae, such as “national security,” “national interest,” or raison d’état).
For Henkin the Constitution of the Framers is still very much alive if not altogether well. He makes this confession of faith in the critical sphere of war powers:
Consider the authority to use force—the perennial and paramount constitutional issue. The Constitution gave the decision as to whether to put the country into war to Congress; the framers intended for the President only the power to defend the United States if this country were suddenly attacked. That division still seems wise and responsive to popular wishes—the basis of authentic democracy. It is not a power that Congress should delegate.
Wise it may still be, but whether it is responsive to popular wishes is more doubtful. If the people understood what the Constitution requires—that the president’s only individual war power is to defend the country if it is suddenly attacked—and felt deeply enough about it, presidents could not get away so easily with doing what Henkin rejects—undefined, uncircumscribed, unchecked, and unbalanced power “to do what is likely to bring us into war.”
Wishful thinking may also vitiate the guidance with which Henkin comes closest to a positive solution to the problem:
In the end, I see no need for amendment or radical reconstruction of the Constitution as regards foreign affairs in particular. The checks and balances intended by the framers and—in my view—justified by our history… can be assured under our contemporary constitutional jurisprudence, as I see it. The responsibility for maintaining them lies with both political branches, but it is ultimately in the hands of Congress…. Only Congress can assure both checks and balances and democracy in foreign affairs.
It may be true that only Congress can assure these ends. The trouble is that over the years Congress has given little assurance that it is able and willing to carry out its responsibilities. It wakes up from time to time, usually doing too little too late, only to slip back into vacillation and opportunism. Advocates of presidential power like to point out that presidents have all the advantages in the formation and execution of foreign policy. That is only too true, and presidents have taken full advantage of it. As long as presidents greedily grasp at as much power as they can get, and Congress meekly or belatedly acquiesces, the balance and separation of powers pre-supposed in the Constitution will be no more than a fond memory or a political mirage.
Henkin’s book is the testament of a scholar who has thought long and deeply about our constitutional predicament. Its moderate tone cannot hide a troubled mind. Nothing in his work justifies the tactics that have again landed us in a presidential war.
The author of another recent study, Constitutional Diplomacy, has the distinction of having been challenged by two administration lawyers. He is Michael J. Glennon, Professor of Law at the University of California, Davis, School of Law. His book also contains a valuable foreword by former senator J. William Fulbright on the skullduggery that went into the Tonkin Gulf Resolution and how it changed his view “about the role of Congress and the courts in our constitutional scheme.”
Glennon’s work is a formidably detailed, scholarly examination of the relationship between the president and Congress in diplomacy and foreign policy. Like Henkin, Glennon believes that “the Constitution gives Congress important responsibilities in foreign-policy decision making and that it gives the Courts the responsibility of resolving disputes between Congress and the President concerning the power to make foreign policy.” Constitutional Diplomacy is really an extended dissertation on these two propositions.
It is instructive to compare what President Bush said at Princeton about his “inherent power to commit our forces to battle after the UN resolution” and what Glennon tells us about this alleged power. Glennon asks the critical question: Can a treaty grant the president war-making power beyond what he would otherwise possess without it?
Glennon finds the answer in a fundamental principle, enunciated by Justice Black for the Supreme Court in 1954—that treaty makers must “act in accordance with all the limitations imposed by the Constitution.” This rule was restated in a report of the Senate Foreign Relations Committee in 1979—that mutual-security treaties do not change the distribution of power within the United States government, which is “precisely what it would have been in the absence of the treaty, and that the United States reserves the right to determine for itself what military action, if any, is appropriate.” In effect, since the Constitution explicitly says that only Congress can declare war, no treaty can abrogate that responsibility or enable the president to claim an “inherent right” other than what he would possess if there were no treaty.
Glennon devotes a chapter to the ramifications of this subject. In the case of the UN, he confirms what we have already noted: “A statute governing United States involvement in the United Nations, the United Nations Participation Act , was ultimately enacted requiring congressional approval of such an agreement”—that is, to use armed force to carry out a decision of the Security Council. The same principle was adopted at the time of the NATO treaty. In 1949, Secretary Acheson gave assurances that the treaty “does not mean that the United States would be automatically at war if one of the nations covered by the pact is subjected to armed attack. Under our constitution, the Congress alone has the power to declare war.” This rule has now been undermined by President Bush.
Glennon sums up that these treaties, including the UN treaty, committed the United States “to judge whether an armed attack actually occurred, to assess whether the attack was provoked, to determine whether a military response is the most propitious, to consider all the factors that go into an evaluation of which action is most appropriate.” But the judgment must be made by the United States in conformity with its traditional constitutional processes, which do not give any other body the prerogative to override the responsibility of Congress to authorize a war or the president any “inherent power to commit our forces to battle” as a result of any other body’s resolution.
The challenge by the administration’s lawyers came in response to an article by Glennon in the Spring 1991 issue of Foreign Affairs in which Glennon examined President Bush’s actions in the Gulf War.
In this article, Glennon traced the administration’s road to war. It began, he pointed out, when Secretary of Defense Dick Cheney announced on August 7, 1990, over five months before the beginning of hostilities, that the United States was committed to the defense of Saudi Arabia in the event of an attack by Iraq. This commitment was solely an executive agreement, more sweeping than previous mutual-security treaties, none of which had contained an absolute commitment to go war. When the chairman of the Senate Intelligence Committee, David Boren, was asked on September 12 whether the President should have consulted Congress before sending troops to the Gulf, Boren replied: “No, I think the President should be supported on that point.” So much for Congress’s safekeeping of its constitutional responsibility.
Congress was mute until, on November 8, President Bush increased the number of US troops in Saudi Arabia to about half a million. Only then did congressional questions arise whether the President had the authority to commit the nation’s forces to war without congressional approval. On December 6, Secretary Baker conceded that the UN resolution had merely authorized the use of force against Iraq but did not oblige the United States to take such action. If so, it remained for the constitutional processes of the American government to work themselves out before the UN resolution could be acted on.
Whatever the president’s war powers may be, Glennon observes, they cannot be construed in such a way that the Framers are made to “play the neat trick of giving Congress a war power that is really no power at all.” Whatever Congress’s power to declare war may be, it cannot be nothing. Advocacy of a presidential monopoly is like a prestidigitator’s trick to make Congress’s power disappear.
Not that Glennon evinces much respect for Congress.
No vote is more career threatening than a vote for or against war. The most advantageous political posture was thus for members to position themselves to criticize the president if the gulf policy failed and to join in the praise if it succeeded. As Senator Mark Hatfield (R-Oreg.) put it, Congress was “cheering with one hand and sitting on the other.” If this seemed cynical, it was. Yet it was no less cynical than the suggestion that Congress had any real choice to approve or disapprove war after more than 400,000 troops were already placed in the Saudi desert.
Bob Dole was the quintessential senator. On December 30, 1990, he said that returning the emir of Kuwait to power “wasn’t worth one American life.” Two weeks later, he led the effort to use US troops to return the emir of Kuwait to power.
One of Glennon’s statements evidently annoyed the administration the most:
Starting from President Bush’s unilateral commitment to defend Saudi Arabia and proceeding to Congress’ jury-rigged approval, the episode represented a textbook example of how an audacious executive, acquiescent legislature and deferential judiciary have pushed the Constitution’s system of separation of powers steadily backwards toward the monopolistic system of King George III.
This sentence was chosen to show the error of Glennon’s ways by two administration lawyers, David P. Rivkin, Jr., and Lee A. Casey, associate general counsel and deputy associate general counsel respectively of the US Department of Energy. They replied to Glennon in the Summer 1991 issue of Foreign Affairs.31
Rivkin and Casey’s first complaint turns on the difference between the power to “make” and “declare” war. They contend: “A strong case can be made that the Framers granted the power to declare war to Congress principally to control the domestic consequences of the use of military force, rather than to avoid foreign entanglements.” They do not make a strong case for this view or any kind of case. Yet they make it seem that the “control of domestic consequences” was the real reason the Constitution gave Congress the sole power “to declare War.”
It is an elementary mistake. In an early draft, Congress was empowered “to make war.” An amendment was jointly introduced by James Madison and Elbridge Gerry to substitute “declare” for “make” in order to “leave the Executive the power to repel sudden attacks.”32 This was the real reason for the change, not the spurious one offered by Rivkin and Casey.33
Next, Rivkin and Casey take up Glennon’s assertion that the Bush administration compelled Congress to go along with its war policy against Iraq by taking measures which forced Congress’s hand. At this point, the two offer a surprisingly hardboiled opinion of Congress, not unlike Glennon’s:
It is not that the tools granted to Congress by the Framers are ineffective, but that members of Congress lack the political will to employ them. In fact it is the very lack of Congress’ political will that makes it imperative to act faithfully to the original meaning of the Constitution which, in the foreign area, gave Congress mostly post-hoc checks upon the executive power.
The first sentence should tell Congress what administration spokesmen really think of it. The contempt is merited, and Congress has brought it on itself, but it has nothing to do with constitutional requirements. The second sentence is another historical hoax. In foreign policy, the congressional powers “to regulate Commerce with foreign Nations,” to “declare War,” to “raise and support Armies,” and to “provide and maintain a Navy” are very far from “post-hoc checks upon the executive power.”
The second main objection of Rivkin and Casey turns on the War Powers Resolution. They state:
We believe that the resolution’s biggest flaw, and it has many, is that it allows Congress to tie the president’s hands. The reason this has not happened so far is that succeeding presidents have refused to accept the resolution’s constitutionality and, when deploying military forces abroad, have never “started” its 60-day timeclock running. Professor Glennon, of course, would overturn this practice by letting the courts force the executive branch into invoking the resolution.
So now we know what is really at stake. Congress, it is held, can on no account “tie the president’s hands.” This means, in effect, that the president must be free to do anything he pleases. Checks and balances are meaningless if they must never “tie the president’s hands”; the very term “checks” means that the president may be prevented by the other two branches from doing what he wants to do. This is not merely a criticism of a particular congressional resolution; it is an assault on the essence of the Constitution.
The War Powers Resolution of 1973 was Congress’s vain effort to play even a subordinate role. It merely required the president to report any involvement of the United States in hostilities, or when imminent involvement was clearly indicated, to Congress within forty-eight hours and to terminate such involvement within sixty days after his report if Congress so directed by concurrent resolution. The real criticism of the War Powers Resolution is that it is so full of loopholes that presidents can easily get around it.
But presidents have taken even this token of congressional participation to be too much. Beginning with Nixon, they have simply brushed it off as unconstitutional and refused to have anything to do with it. One would imagine that a decision of unconstitutionality should be made by the courts, but they have habitually evaded their responsibility in this area by considering such issues to be a “political question.” As for Congress, it has taken the presidential defiance and judicial abdication lying down and let the War Powers Resolution fade away.
Still, Rivkin and Casey have unwittingly performed a useful service. They have sharpened the issue so much that it cannot be evaded: either the Constitution provides for checks and balances, in particular on the prerogative of the president to go to war, or it does not. If it does not, we are no longer living under the Constitution that we thought we had.
An article, “The Lonely Superpower,” by Charles Krauthammer in the July 29, 1991, issue of The New Republic, offers an opportunity to consider some aspects of the war that will always be associated with the name of George Bush.
Krauthammer is a breathless triumphalist. The world, he says, is now “unipolar.” Only the United States counts as a great power. This unipolarity “became blindingly clear this year when, with a prodigious act of will, the United States turned history in the Arabian peninsula.”
But this celebration has its dark side. Isolationism, Krauthammer warns, is again rearing its ugly head. It used to be “left isolationism” now it is “right isolationism.” Russell Kirk made a speech in October 1988 attacking the “fanciful democratic globalism” of the neoconservatives. Pat Buchanan came out for an “America first” foreign policy and declared. “When this cold war is over. America should come home.”
The larger threat, Krauthammer says, comes from “multilateralism.” Fortunately, he explains, it was a myth in the Gulf War, which was merely an example of “pseudo-multilateralism.” It was pseudo because: “The United States recruited a ship here, rented a brigade there, bought (with skillfully deployed sticks and carrots) the necessary UN resolutions to give its action a multilateral sheen. The Gulf was no more a collective action than was Korea, still the classic case of pseudo-multilateralism.”
But if the multilateralism of the Gulf War was so phony, why should we be worried about it? Krauthammer offers two reasons. One is that “we will mistake the illusion—world opinion, UN resolutions, professions of solidarity—for the real thing, which is American power. And that we will assume that if we dispense with the real thing, the illusion will get us where we mean to go. It will not.”
But an illusion is an illusion; it generally lasts only so long as it does not come up against hard reality. If it should last much beyond that, it would tell us that there is so much wrong with the American people that the “real thing” is not very real.
Worse still, Krauthammer is sorely worried that multilateralism may become a fetish as well as an illusion. He reasons:
The ultimate problem with multilateralism is that if you take it seriously you gratuitously forfeit American freedom of action. You invite China and the Soviet Union, countries indifferent when not hostile to our interests, to have a decisive say and even a veto over our interests and those of our friends. Why should the preeminent power on the globe invite such a needless constraint on its action?
This is a strange anxiety for one who was so clairvoyant about the “pseudo-multilateralism” of the Gulf War. He did not take the alleged dangers of multilateralism seriously in this war; it is hard to see why it should be taken far more seriously next time. The United States was able to go to the UN because it was able to collect enough votes to do what it wanted to do anyway. UN permissiveness is a luxury, not a necessity. If the UN does not come across with the votes next time, the United States will not be so uninventive that it will lack reasons for doing what it wants to do. After all, the United States sent an armed force into Panama—a larger country than Kuwait—without a license from the UN.
Oddly, Krauthammer needs no lessons in how to ignore the UN. As he points out, the United States acted unilaterally on behalf of the Kurds, after having let them down. Why the same thing could not happen again is his secret.
Krauthammer is both a cynic and an enthusiast. He is refreshingly cynical about the Gulf War’s “pseudo-multilateralism.”34 He is equally cynical about Bush’s “New World Order.” When Bush says that “The quest for a new world order is, in part, a challenge to keep the dangers of disorder at bay,” Krauthammer reads it to mean that “For Bush, the new world order is principally about order.” Or, in other words, the new world order is really designed to prevent the old world order from changing—or changing in a manner that Bush disapproves of. But the enthusiast always breaks through in order to make the United States decide what, if anything, is going to change.
Krauthammer’s article raises questions about America’s alleged decline and the nature of the Gulf War itself. To explode the “myth” of American decline, Krauthammer reaches back to the Korean war.
Well, in 1950 the United States engaged in a war with North Korea. It lasted three years, cost 54,000 American lives, and ended in a draw. Forty-one years later the United States engaged in a war with Iraq, a country of comparable size. It lasted six weeks, cost 143 American lives, and ended in a rout.
The reason for the difficulty with North Korea, according to Krauthammer, is that it had “strategic depth,” with China and the whole Communist world behind it. Saddam’s Iraq had to face us alone.
If someone like Krauthammer can believe this, it is worth looking into. “Strategic depth” refers to extensive space, as in the case of the Soviet Union, which enjoys enormous strategic depth by virtue of its size, and permits Soviet armies to retreat, if necessary, far into the interior.
Even if Iraq had enjoyed the support of the Soviet Union or China, its war cannot be compared strategically with that of Korea. No one can believe that Soviet or Chinese forces would have intervened in Iraq the way Chinese forces intervened in Korea. Saddam’s forces had as much “strategic depth” in Iraq as the North Koreans had in Korea.
This wildly misused term falsifies the real nature of the Gulf War. The main difference between it and the Korean War is that the North Koreans fought fiercely and the Iraqis scarcely fought at all. In his interview with David Frost, General Norman Schwarzkopf stated that “they chose not to stay and fight; … they were not willing to fight.” During the bombardment of the Iraqi roads, bridges, airfields, and other infrasructure for over a month, the Iraqi air force offered almost no resistance. The vaunted Republican Guard hardly fought at all. Nothing like this can be said of the North Koreans, who fought to the death with every weapon at their command and whether they were outnumbered or not.
The Gulf War ended in an Iraqi rout, but it was more a walkover than a war. It was not the “Mother of Battles,” as Saddam blustered; it was more like the abortion of battles. If the “myth of American decline” is to be exploded by such a war, it is going to be a hardy myth until it is tested in different circumstances.
Something else is of greater importance. American decline is not predicated on the success of military power alone, especially against such an opponent. It is the disparity between accumulated military force and the deepening social and economic malignancies in the United States that presents the true threat of decline. Until the United States demonstrates the ability to confront and overcome its domestic disorders, it is premature to bury the myth of American decline.
The same issue of Foreign Affairs that contains the exchange between Rivkin-Casey and Glennon includes an article on “The Roots of American Power” by Robert D. Hormats, former assistant secretary of state for economic and business affairs. Hormats sees fit to ask these questions:
Can an America whose cities are in some parts indistinguishable from Third World slums, and whose already large underclass continues to fall behind the rest of society, maintain the moral authority required for world leadership when so many nations and peoples see a better quality of life as their overriding goal?
Can an America whose primary and secondary education system suffers from profound neglect, where the full economic potential of many of its citizens remains untapped, boost productivity and international competitiveness enough to remain a preeminent global economic power?
Can an America that continues to pass its debts on to the next generation, and fails to provide it with adequate education or infrastructure avoid divisive intergenerational tensions that weaken its international resolve?
Can an America in which large numbers of blacks and other minorities fall outside the productive economy and become alienated from mainstream society avoid the kind of social conflict that forces a country to turn inward? Can such an America provide an example to other nations trying to cope with their own racial heterogeneity, ethnic diversity and increased immigration?
Can an America plagued by these internal conflicts generate the resources or domestic political consensus future leaders will require to play an effective global role? And if the United States is beset by such problems, will other nations have confidence in its long-term reliability as an ally or in its political staying power in global crises?
These are inescapable questions. They hardly exhaust the dire problems the United States faces today. The signs of economic and social deterioration are beyond dispute; the real question is whether they are long-term or merely represent a short lapse. Bush and the Republicans are betting—or praying—that they are the latter; if they are wrong, their foreign policy will not be appreciated for long. In this respect, the Gulf War did not help; it tipped the economy into a recession, according to Michael I. Boskin, chairman of the President’s Council of Economic Advisers.35
One form of presidential escapism from domestic problems is Bush’s preference for foreign business. When he was asked what he liked best about his job, he revealingly answered “foreign affairs.” One suspects that Bush’s priorities flow in some part from the satisfaction he gets from dealing with other nations’ leaders and the frustration he suffers every time he confronts a domestic predicament, for which there is never enough money or a realistic policy.
A difference of perspective helps to explain this preference. Internationally, the United States appears to be the only superpower, “at the apex of the international system,” as Kraut-hammer enthusiastically puts it. But internally, the prospect is quite different. Domestic problems seem to be so intractable that the Bush administration has all but given up presenting a convincing program for dealing with them.
The disparity between the “apex of the international system” and the national base has already shown itself in different ways. It was naively revealed when President Reagan gratefully accepted a few million dollars from King Fahd of Saudi Arabia to support the President’s favorite contras. It emerged again when the Bush administration, for the first time in American history, felt that it should or could not pay for a military operation and methodically solicited donations from other countries to offset the cost. To the “tin-cup diplomacy” of the Iran-contra affairs was added tin-cup war-making in the Gulf.
Krauthammer also raises the question why the United States achieved such “an extraordinary military victory” in the Gulf and then “could not wait to get out and go home.” His answer is that the United States is not sufficiently “imperially minded,” as Britain and France were at their height.
It is highly questionable how extraordinary a military victory can be against an enemy who did not fight. We do not know why Saddam’s forces gave way so easily after all his boasting, but that is by far the most striking aspect of this one-sided war rather than why the US-led forces scored such an easy victory. Against such an enemy, triumphalism is frivolous.
Still, the question remains: Why did such an ostensibly glorious victory end in so many ways ingloriously? The answer is not in whether the Bush administration was sufficiently imperially minded but in whether it was sufficiently politically minded.
Many of Clausewitz’s insights are still as valid as they were more than a century-and-a-half ago. He might have been thinking of Saddam’s Iraq when he wrote: “The defeated state often considers the outcome merely as a transitory evil for which a remedy may still be found in political conditions at some later day.” But his most famous dictum is even more relevant: “War is merely the continuation of policy by other means.”36 Like any other, the Gulf War will have to justify itself politically, not by a clash of arms between wildly unequal forces.
Politically, three stages must be taken into account—before the war, during the war, and after the war. We do not yet have the full story of the prewar US policy vis-à-vis Iraq, but there is no doubt that the Reagan and Bush administrations contributed to Saddam Hussein’s power for years. It is not only clear that he was the beneficiary of US favor up to the very eve of the war but that a cover-up was attempted to hide the evidence, as in the case of Ambassador April C. Glaspie’s last meeting with Saddam on July 25, 1990. We now know that she misled the Senate Foreign Relations Committee about it; far from having told Saddam off, she assured him that President Bush still wanted to please him.37
From what we now know, Bush’s war aims went through a number of phases. On August 8, 1990, Bush wanted nothing more than “the immediate, unconditional and complete withdrawal of all Iraqi forces from Kuwait.” But he abstained from committing American forces to military action to carry out this mission. In a second phase, the US war aim was expanded to protect Saudi Arabia from an Iraqi attack.
Still later, US war aims were again expanded. UN resolution 678 of November 29, 1990, was basically limited to the liberation of Kuwait. But Bush contributed war aims of his own. When he denounced Saddam as a Hitler, called on the people of Iraq to overthrow him, and put the United States behind a “new world order,” they were war aims as much as the UN’s. If Saddam was the Iraqi equivalent of Hitler, he could not be expected to survive the war. Woodward says that Bush signed a top-secret intelligence “finding” authorizing CIA covert actions to overthrow Saddam.38 The implications of Bush’s words were only too well understood in Iraq by the disaffected Kurds and Shi’ites.
Thus, there was a one-dimensional UN war aim and there were multidimensional US war aims. The defense of Saudi Arabia, the overthrow of Saddam Hussein, and the establishment of a “new world order” were clearly understood to be US war aims until the Kurdish-Shi’ite uprisings made Bush and his advisers change their minds.
On the fourth day of the ground offensive, it suddenly occurred to the administration’s strategic thinkers that the downfall of Saddam Hussein threatened the unity of Iraq. General Schwarzkopf, as he later related, had expected to finish his “battle of annihilation,” but President Bush “made the decision that, you know, we should stop at a given time, at a given place that did leave some escape routes open for them to get back out.”39 The British were also surprised at the sudden turn of events, but went along quietly.
The specter which moved Washington was the assumed threat to the unity of Iraq by rebellious Kurds and Shi’ites, though both had been encouraged to rebel by the US and the former at least had asked for no more than autonomy. Their rising brought the order to Schwarzkopf to stop his offensive and let Saddam’s remaining forces escape from his nut-cracker attack. These forces were permitted to get away with enough tanks and aircraft to put down the Kurdish and Shi’ite rebellions without mercy. In effect, the United States saved Saddam Hussein’s regime in order to prevent the feared disintegration of Iraq and a radically changed balance of power in the region.
The new strategy was an improvisation, based on a miscalculation. The United States had been deliberately waging a personal vendetta against Saddam Hussein; it was designed to separate him from the Iraqi army and the Baath party, which were expected to get rid of him as soon as they saw that his cause was hopeless. If he was a Hitler, as Bush said, it would have been as if we had wanted the German Army and the Nazi party to overthrow the Führer and take charge of the country in his stead.
The fixation on Saddam personally, by making Saddam’s survival a test of the war’s success, was another miscalculation. If Saddam survived, Bush lost; if Saddam fell, Bush won. So far Saddam has survived, with the result that he has blandly proclaimed a kind of victory. The gamble on Saddam’s removal by his own retinue betrayed a misconception of the nature of his regime. If he went down, too many others beholden to him were almost certain to go down with him. A personal regime, such as Saddam had methodically fashioned, was most unlikely to be overthrown from the inside.
Saddam as Hitler will also haunt Security Council members. When did Saddam become a Hitler? On the day he invaded Kuwait? Otherwise, how can their deliberate policy of arming Saddam’s Iraq to the hilt—$40 billion worth of weapons on credit!—be explained? This embarrassing prewar arms policy was energetically practiced by France, the Soviet Union, Germany, Great Britain, the United States, China, and Italy as if they were building up Saddam for just the expansion of his power that enabled him to behave as if he were an imitation Hitler.40 One would imagine that these countries were suffering from advanced amnesia to judge from the attention which they have paid to their own recent largesse to Saddam.
When Bush was confronted with the realization that the Iraqi army and the Baath party had no intention of sacrificing Saddam and that the Kurdish-Shi’ite rebellions might lead to a breakup of the Iraqi state, he abruptly changed course. Saddam was now our de facto ally to hold Iraq together. Even this extemporized arrangement could not be maintained as protests rose, and US forces went into northern Iraq—only to go out again.
By this time, Bush must have been sorry that he had ever raised expectations of a deposed Saddam. To cover up this indiscretion, the official US war aim was reduced to the UN resolution to liberate Kuwait. But wars are not one-dimensional. They are multi-dimensional and must be judged on the basis of the totality of their causes and consequences. The liberation of Kuwait cannot be separated from how Kuwait emerged from it and what the Sabah dynasty has in store for it. The fate of the Kurds and Shi’ites is just as much a part of this war as that of Kuwait. An air war which destroyed much of the Iraqi infrastructure on which civil life depends was just as deadly as a policy of deliberately aiming to kill civilians.
We cannot as yet make a full estimate of what this war entailed. It is too early to see the prewar, war, and postwar phases in perspective. But it is not too early to see why the United States “could not wait to get out and go home.” The essential reason is that the United States set off a chain of political consequences with which it was incapable of dealing. The ease of the military victory was a surprise, and everything else that followed from it was even more of a surprise. Yet wars cannot be judged by reducing them to a single objective or by ruling out all the miscalculations and surprises that went into them.
Bush’s “new world order” suggests that he has far-reaching, if vacuous, intentions for the region and the world. His slogan represents some kind of imperial ambition, if without an imperial vision; imperial-mindedness takes different forms and uses different means in different times and conditions. The trouble is that Bush could not have both “new” and “order.” If the world is going to be new, the change is not likely to be orderly, and if he is going to restore order, the world is not going to be new. Whatever the slogan is supposed to mean, it does not exempt the United States from responsibility for the aftermath of the war. When Bush fled from this responsibility, it was because he was less politically minded than “imperially minded.” He came to a political dead end and did not know how to finish what he had started.
Nevertheless, the United States has taken on responsibilities in the Gulf region which will severely tax its imperial-mindedness and political-mindedness. The country which prides itself on being the greatest democracy in the world has become the protector of some of the most undemocratic, die-hard, caste-conscious, otiose monarchies in the world. This, too, is part of the Gulf War. Kuwait is not the only miniature Gulf state coveted by a neighbor. Egypt and Syria would benefit enormously if they could get some of that oil money flowing into the emirates. Bahrain has long been claimed by Iran, and two empty seats in the Iranian parliament are reserved for representatives from the present emirate.41 Anyone who thinks that very much in the region was settled by the Gulf War desperately needs to wake up.
The Gulf War was another presidential war. It was no less a presidential war by virtue of a congressional authorization which Bush has insisted he did not need.
The heart of the constitutional issue is whether one man alone, the president, can decide to take the country into war and maneuver Congress into putting its seal of approval on what he has all but predetermined. At stake is nothing less than whether the Constitution is to function as a living guide—instead of a historical relic, nice to have around but convenient to disregard.
Over the decades and centuries, the Constitution has shown amazing resiliency and adaptability. Nevertheless, in the crucial matter of war powers, ways have been found to make it little more than a dead letter. Administration lawyers ominously warn us that we cannot “tie the President’s hands,” as if this were not the express purpose of checks and balances in the Constitution. To leave the President’s hands completely united in any sphere of policy is to do violence to the fundamental principles which have guided this nation for all of its existence.
Yet checks and balances have not worked well for almost half this century. The executive branch has become so vast in numbers and so laden with responsibilities that it has come to live a virtually autonomous existence in which its first loyalty is to itself. The officials who managed the Iran-contra affairs did not consider themselves responsible to anyone but themselves or their immediate superiors. When former Secretary of Defense Caspar W. Weinberger said that they were “people with their own agenda,” he was describing an attitude that extends far beyond Oliver L. North or John M. Poindexter. The president, situated atop this huge bureaucracy, sets the example of governing by “his own agenda,” at least in foreign policy.
Yet for those who are disturbed by this state of affairs, as I am, the way out is not easy or obvious. It has gone on for so long, presidents are determined to prolong it and have battalions of lawyers to rationalize it, Congress has been so cringing, and the courts have been so neglectful, that the obstacles to change seem to be insuperable. That presidential wars represent a perversion of the Constitution is, in my view, undeniable. Scholars of the authority of Louis Henkin and Michael J. Glennon demonstrate that foreign policy is not a presidential monopoly and Congress has an important role to play in it. But constitutional exegesis has done little to hold back the presidential juggernaut. Something else is needed.
Since we are getting so much inspiration from Madison these days, we might turn to him for an analysis of just this problem. In a letter to Jefferson in 1798, he wrote:
The management of foreign relations appears to be the most susceptible of abuse of all trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of people are less capable of judging, and are more under the influence of prejudices, on that branch of their affairs, than of any other.42
In the first part of this sentence, Madison might have been alluding to the way the State Department manipulated the testimony about the Glaspie-Saddam meeting on July 25, 1990. But the second part of this sentence is crucial to an understanding of both the problem and its possible resolution. The heart of the matter, Madison seems to be telling us, is that the problem will be with us and get worse all the time so long as presidents can manipulate the prejudices of the body of people, so that they cheer him whenever he takes the country into war.
The Gulf War benefited from a popular need to exorcise the failed presidential wars in Korea and Vietnam. The victory was all the more welcome because it was so cheap and easy. Yet cheap and easy wars are not to be had except in exceptional circumstances. Korea and Vietnam, where the enemy fought bitterly, were far more the norm of what the cost of wars may be. If the Gulf War lures us into wars ostensibly on the cheap, it may yet be the costliest war of all.
The so-called “rally round the flag effect” notoriously works for presidents. It has even been found that presidents are more likely to win congressional approval on key international issues in the month following the use of military force. Before President Johnson sent troops to Vietnam after the Tonkin Gulf incident, 42 percent said that they supported involvement in Vietnam; soon afterward, the figure went up to 72 percent. Before Nixon ordered the bombing of Cambodia, only 7 percent thought it was a good idea; afterward, 50 percent approved. In the end, Truman, Johnson, and Nixon were hurt by their wars, but not until they had lasted too long and had cost too much.43
In this sense, the Gulf engagement was the ideal presidential war; it was almost absurdly short and exacted a minimum of casualties. This hollowest of American military victories brought on an orgy of self-congratulation. So long as public opinion responds to such a war as a test of American manhood and an occasion for patriotic intoxication, presidents are not likely to be dissuaded or Congress impressed by constitutional arguments.
In the end, voters must decide whether they want presidents to make wars. For those who do not want an autocratic president in this sphere above all others, it is more than ever necessary to clarify the issues, to purge our history of self-serving myths and distortions, to show why constitutional processes deserve to be lived up to in foreign as well as domestic affairs. But presidents and Congress are more likely to respond to an aroused public opinion than to the best of constitutional authorities. Until the voters get tired of these wars, they are not about to go away.
The tragedy will be if we have to have one war too many before we learn that presidential wars are both undesirable and unconstitutional.
September 26, 1991
I count the Gulf War on the ground that using about a half million troops cannot be considered a small operation. ↩
As Professor Michael J. Glennon points out, nearly all two hundred cases involved “fights with pirates, clashes with cattle rustlers, trivial engagements and other minor uses of force not directed at significant adversaries, or risking substantial casualties or large scale hostilities over a prolonged duration.” Foreign Affairs (Spring 1991), p. 90. ↩
The Federalist, edited by Jacob E. Cooke (Wesleyan University Press, 1961), p. 333. ↩
The Federalist, p. 324. ↩
Irving Brant, James Madison: Secretary of State, 1800–1809 (Bobbs-Merrill, 1953), pp. 48–49. ↩
First Annual Message, December 8, 1801, A Compilation of the Messages and Papers of the Presidents, James D. Richardson, editor (Washington, 1898), Vol. I, pp. 326–327. ↩
The Papers of Alexander Hamilton, Harold C. Syrett, editor (Columbia University Press, 1977), p. 454. Italics in original. ↩
Irving Brant, James Madison: Commander in Chief, 1812–1836 (Bobbs-Merrill, 1961), p. 20. ↩
Drew R. McCoy. The Last of the Fathers (Cambridge University Press, 1989), p. 16. ↩
Samuel Eliot Morison, The Oxford History of the American People (Oxford University Press, 1965), p. 558. ↩
Albert Gallatin, Peace With Mexico (1847), reprinted in The Writings of Albert Gallatin, Henry Adams, editor (Lippincott, 1879), Vol. III, p. 583. ↩
Speech of January 12, 1848, House of Representatives, The Collected Works of Abraham Lincoln, Roy P. Basler, editor (Rutgers University Press, 1953), Vol. I, p. 432. ↩
See the discussion of Lincoln’s action in William M. Goldsmith, The Growth of Presidential Power (Chelsea House, 1983), Vol. II, pp. 327–333. ↩
William James to W. C. Forbes, June 11, 1907, The Letters of William James, Henry James, editor (Atlantic Monthly Press, 1920), Vol. II, p. 289. James was only one of those who prominently opposed the war in 1898; see Robert L. Beisner, Twelve Against Empire: The Anti-Imperialists of 1898–1900 (McGraw-Hill, 1968). ↩
Congressional Record, June 28, 1950, p. 9323. Taft also said that he would have voted for a joint resolution approving Truman’s actions. ↩
Congressional Record, January 22, 1951, p. 537. ↩
Glenn D. Paige, The Korean Decision (Free Press, 1968), pp. 218-219. A Democrat, Senator Paul Douglas of Illinois, cited among other executive actions Jefferson and the Barbary pirates and Polk’s move against Mexico in 1846 in justification for Truman’s Korean policy (Congressional Record, July 5, 1950, p. 9648). ↩
Harry S. Truman, Years of Trial and Hope (Doubleday, 1956), p. 388. ↩
Harry S. Truman, Truman Speaks (Columbia University Press, 1980), p. 7. ↩
David S. McClellan, Dean Acheson Dodd Mead, 1976), pp. 275, 281–282. ↩
Merle Miller, Plain Speaking (Berkley publishing Corp., 1973), pp. 280–284. ↩
US Congress, Senate, Report No. 797, 90th Congress, 1st Session (1967), p. 17, cited by Edward Keynes, Undeclared War (Pennsylvania State University Press, 1982), p. 2. ↩
This point was made by Brian Urquhart, “Learning from the Gulf,” The New York Review of Books, March 7, 1991, p. 34. ↩
Congressional Record, Senate, June 28, 1950, p. 9323. ↩
Edward S. Corwin, The President (New York University Press, 4th revised [last] edition, 1957), p. 221. Italics in original. ↩
Bob Woodward, The Commanders (Simon and Schuster, 1991), p. 357. ↩
Brian Urquhart, The New York Review of Books, March 7, 1991, pp. 34–35. ↩
Presidents have taken to announcing “doctrines” in the most slipshod, arbitrary fashion. The “Carter Doctrine”—that the United States was going to fight if necessary to prevent an outside power from taking control of the Persian Gulf area—was drafted by a few officials without any staff studies or discussion with Congress. Reagan suddenly stated in reply to a question at a press conference that the United States had a commitment to Saudi Arabia. Yet John H. Kelly, the present Assistant Secretary of State for Near Eastern and South Asian Affairs, testified that there are “no written records, no official record, establishing the commitments of the United States for the defense of any of the Gulf nations, including Kuwait and Saudi Arabia.” After noting these aberrations, Charles William Maynes, the Assistant Secretary of State for International Organization Affairs in the Carter administration, observed: “I would contend that if we had had discussions with Congress or discussions between the executive branch and the Congress, we might have had some difficult and clarifying questions put to us. For example, the Congress might have asked what we were doing to implement a commitment, if we had one, to Kuwait or what our policy really was toward Iraq, if we had the commitment of these other States?” Relations in a Multipolar World, Hearings before the Committee on Foreign Relations, Senate (November 26, 28, 30, 1990, Part I, p. 150). ↩
The only others are: to make treaties and appoint ambassadors, both with the advice and consent of the Senate. Congress is given far more such powers: to declare war; grant letters of marque and reprisal (contemporary terms for most naval warfare); make rules concerning captures on land and water; raise and support armies; provide and maintain a navy, make rules and regulations for land and naval forces; provide for organizing, arming, and disciplining the militia. ↩
In a footnote, Henkin sardonically comments: “Observers may have noticed that there has been little invocation of original intent in foreign affairs, surely not by the most vocal recent supporters of original intent in the executive branch.” ↩
This letter reminded me of similar letters by the same David Rivkin, Jr., and another administration lawyer, Lawrence Block, who argued with me in The New York Review of Books last year. See “The Constitution in Danger: An Exchange,” [NYR, May 17 and August 16, 1990]. ↩
The Records of the Federal Convention of 1787, Max Farrand, editor (Yale University Press, revised edition, 1937), pp. 318–319. ↩
In his original article, Glennon had already explained why the change had been made from “make” to “declare” (Foreign Affairs, Spring 1991, pp. 86–87). The historical background is carefully examined by Edward Keynes in Undeclared War (Pennsylvania State University Press, 1982), pp. 34–38. Keynes concludes: “The decision to engage the nation in offensive hostilities or limited war is a congressional decision.” ↩
Krauthammer is cynical enough to believe that the American people want to be hoodwinked: “But Americans insist on the multilateral pretense . In the Gulf, for example, the Kuwait policy commanded support when presented not as an issue of oil and jobs but as a war of liberation.” ↩
Leonard Silk, The New York Times, August 16, 1991. ↩
Carl von Clausewitz, On War, edited and translated by Michael Howard and Peter Paret (original German edition, 1832; Princeton University Press, 1984), pp. 80, 87. The second quotation, in its usual form, is taken from the heading; the original wording is: “We see, therefore, that war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on by other means.” ↩
“Ambassador resumed her theme, recalling that the President had instructed her to broaden and deepen our relations with Iraq. Saddam had referred to some circles’ antipathetic to that aim. Such circles certainly existed, but the US Administration is instructed by the President. On the other hand, the President does not control the American press; if he did, criticism of the administration would not exist” (Cablegram from Ambassador Glaspie to Secretary of State James A. Baker III, July 25, 1990). ↩
Woodward, The Commanders, p. 276. This and other allegations certainly merit a congressional investigation into the events leading to the war—the only way we are likely to find out what really happened. ↩
Interview with David Frost, March 27, 1991. Later, a dispute arose whether Schwarzkopf had disagreed with Bush’s order to permit the rest of the Iraqi army to escape. But this was a subsidiary issue; there was no dispute about the substance of the order. ↩
See the valuable article, “The Arming of Saddam Hussein” by Fredric P. Smoler, Dissent (Summer, 1991). Smoler recalls the memorable lines of The Resistible Rise of Arturo Ui: ↩
I am indebted here to Jean-Patrick Voudenay, “Les monarchies arabes sous protectorat US,” Le Monde, August 5, 1991. ↩
Madison to Jefferson, May 13, 1798, Letters and Other Writings of James Madison (Lippincott, 1865), Vol. II, p. 141. ↩
Bruce Russett, Controlling the Sword (Harvard University Press, 1990), pp. 34, 37–38, 47. ↩