TCS Daily

Rating Approvals

By Dale Franks - September 17, 2002 12:00 AM

It is, as some wags are fond of observing, better to ask for forgiveness than permission.

That seems to be the logic that some advocates of an attack on Iraq are applying to question of whether the president needs to get congressional approval for it. While agreeing that Congress must authorize American military force in general, they argue that such permission is unnecessary in this specific case, because the president already has permission to launch an attack.

They argue that Congress authorized the initial attack on Iraq, and that the United Nations also passed the appropriate resolutions allowing the use of military force. In the aftermath of his crushing defeat in that conflict, Saddam Hussein agreed to a cease-fire whose maintenance relied upon his compliance with several conditions. Among the conditions with which he was to comply were allowing weapons inspectors into Iraq, and ceasing his research, production, and stockpiling of weapons of mass destruction.

Since that time, Hussein has ceased complying with these and other restrictions. He threw the UN weapons inspectors out of Iraq. The best available evidence is that his research on biological and chemical weapons is proceeding apace. Under such conditions, some argue that, since the cease-fire relied upon Hussein's fulfillment of these conditions, we already have the requisite legal authority the launch an attack any time we wish.

This might be a very good reason to suggest that United Nations authority for such an attack already exists. As President Bush pointed out in his speech before the UN this past week, the Iraqi Regime is in violation of several UN resolutions, all of which require compliance on pain of military force.

Indeed, President Bush, hinted as much in his speech before the UN. The president said, "The Security Council resolutions will be enforced, the just demands of peace and security will be met or action will be unavoidable and a regime that has lost its legitimacy will also lose its power." By my reading, this is an indication that the administration will argue that an attack on Iraq already has legal sanction from the UN, in order to enforce these UN resolutions. By this reasoning, an attack on Iraq is not a unilateral action, but rather an action taken on behalf of the international community in order to enforce their lawful dictates to the Iraqi regime.

Yet, it is important to remember that international law is extra-constitutional. No matter how much latitude international law may give the president in taking action, the requirements of the Constitution must still be met. Even if one were to grant arguendo that all of the above is legally valid in a constitutional sense, I would suggest that it so totally ignores political reality - as well as good common sense - as to be entirely irrelevant.

The original attack on Iraq took place more than a decade ago. During the debates for congressional approval of that conflict, the reason explicitly offered for military action was the removal of Saddam Hussein's forces from Kuwait, not a crusade against the Iraqi government. It is, therefore, unclear how an attack today, with the specific intention of overthrowing the government of Iraq, falls within the scope of that prior authorization. Moreover, even if it did, as a political matter the American people's approval is still required before constructing another punitive expeditionary force.

When the Gulf War ended, the president accepted a cease-fire after publicly declaring our war aims to have been met. Our soldiers, sailors, and airmen were, except for a small contingent, subsequently removed from the region. It seems difficult, therefore, to make the argument to the American people that you can go back a decade later, declare two previous governments to be mistaken on whether or not further military action was necessary, and then launch another invasion under the fig leaf that you are covered by a decade-old congressional approval.

By that argument, we could invade North Korea any time it is insufficiently servile, because, after all, we only have a cease-fire with Pyongyang. Since the conflict in Korea ended not with a treaty, but with a cease-fire agreement, legally we are still at war. I'm pretty certain the American people wouldn't see it that way, however. Similarly, when Germany re-annexed the Saar in 1935, President Roosevelt could have argued that such a gross violation of the Treaty of Versailles required an immediate assault upon Germany, in continuation of the Great War of 1914-1918. It might have been a perfectly legal and legitimate argument - and, in retrospect, perhaps even the wisest policy option - but it would have resulted in Roosevelt occupying the ranks of one-term presidents in 1936.

The majority of American people realize that Iraq needs a government that is less threatening to both the world at large, and its own people. If so, then what's the harm in asking for the support of their elected representatives? Isn't that the way a democratic republic is supposed to work? The best course of action is to acquire the support of the American people, as expressed by their elected representatives, before launching an invasion of another sovereign state.

Such authorization is also important from a purely military standpoint as well. One thing that is unique about Western soldiers - and American soldiers in particular - is the way they respond to such expressions of public support. American soldiers are deadlier, faster, and possessed of higher morale when they feel they are on a moral crusade to fight evil, and are marching to the constitutional orders of an elected government. I spent much of my adult life as one of those soldiers, and I know how important it is to have such a public indication of support from the American people through their government.

Of course, some members of Congress are not pleased to face such a responsibility. Some have suggested that a congressional vote on Iraq be postponed until after the elections on November 5th. This is an abdication of their responsibilities. The issue of Iraq is the central issue of American foreign policy today. The electorate deserves to know how their representatives stand on this issue, so that they may cast their votes accordingly. Postponing such a vote cheapens the electoral process by holding vital questions of American policy hostage to the personal political ambition of a few politicians who are evidently afraid to submit their views to the voters they are supposed to represent.

Requiring Congress to vote on the issue - and vote now - has a number of salutary effects. It forces every elected Federal official to take a public stand on one of the most critical decisions a government can make: the decision to send our sons and daughters off to kill and die in a foreign country, far from home. In the event of great victory, it prevents those who opposed the measure from claiming credit. In the event of disaster, it prevents those who supported it from absolving themselves of responsibility. It gives the electorate a central issue upon which to judge their representatives at election time. Indeed, candidates for higher political office are even today judged in some measure on how they voted on the question of the Gulf War more than a decade ago.

In short, asking for congressional approval forces the representatives of the American people to assume their constitutional share of responsibility, and to defend their positions before the electorate. In addition, it demonstrates to both our allies and enemies that the decision to go to war is a decision based on the will of the American people, rather than that of a single man, or a small cabal.

Theoretically, a perfectly legitimate and legal argument can be made that President Bush doesn't need congressional approval for any attack on Iraq. But the arena of public policy - and electoral politics - is not a courtroom in which legalistic arguments are particularly applicable.

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