TCS Daily


Lame Ducks, Lame Hawks?

By Andrew W. Smith - November 16, 2007 12:00 AM

It was not so many years ago that another "lame duck" president, facing a hostile Congress and a United Nations Security Council veto, launched an air war. In March of 1999, President Bill Clinton had 22 months remaining in his final term. Both houses of Congress were vehemently opposed to the Administration, so much so that the House of Representatives had recently made Clinton only the second president to be impeached. Russia, on the Security Council, was certain to veto any resolution for action against Russia's "little brothers", the Serbs.

Nonetheless, invoking the support of NATO, Clinton waged a 78-day air war on Serbia over the issue of Kosovo, and by the time the bombs stopped dropping, Congress had done as it usually does and capitulated to the Commander-in-Chief, funding the operations with money to spare.

This was the trend through the 1990s. It is mistaken for a placid period, but the military missions came one after another: Somalia, Haiti, Bosnia, Kosovo, plus many strikes on Iraq, attacks against Afghanistan and Sudan, and a major show of force off Taiwan. All while the United States Armed Forces was being hacked to half its 1992 size, leaving a rump of the Cold War army that would have to improvise and take up the new war against Islamic fascism as of 2001. Congress might as well have stayed home. The Clinton Administration ordered half a dozen military actions citing UN resolutions or NATO support, but without the advance approval of Congress, and often over Congressional opposition.

The Bush Administration, for all the Iraq resolution rejections at the UN Security Council, did seek and receive prior Congressional consent for the Afghanistan and Iraq wars, in the 2001 and 2002 "Authorization for Use of Military Force" resolutions, on top of the standing Iraq Liberation Act of 1998.

Of course, the aerial campaigns of the 1990s are an order of magnitude or two down from the full-scale, "boots-on-the-ground", regime-changing wars of today, but it is mainly '90s-style air strikes that are being considered for Iran.

The most pertinent U.S. law in the Iran case may be the 1973 War Powers Act. It was passed by a radicalized, post-Vietnam Congress, overriding a veto by President Richard Nixon, and was intended to restrict the role of Commander-in-Chief. But it actually codified the principle that a president can order military action without Congressional authorization, requiring only that the president seek approval within 60 days -- assuming the operation has lasted that long -- and report to Congress within 48 hours.

Presidents since Nixon have tended to take a dim view of the War Powers Act -- Clinton called it "constitutionally defective" -- but it remains the most explicit expression in law of the Congressional view on war powers.

If this is a sullying of the U.S. Constitution, it is one with a long and respectable pedigree. The United States has used military force a couple hundred times in its couple of centuries; the majority of those deployments have lacked Congressional consent, and only five times has Congress actually declared war as per the Constitution. The subordination of Congress, in its current form, started with President Harry Truman in 1950, and subsequent administrations have entrenched the practice of committing U.S. forces first and asking for permission later, if at all.

Part of the rationale for this is legitimate enough: The necessity of immediate action or an element of surprise. Weeks and months of public hearings, debates, and votes on a military mission do let the cat out of the bag. But the motivations are also less noble. Congresses are often hostile to the executive branch and likely to automatically refuse approval for "the president's war", administrations tend to view Congress as a second-rate institution on matters of war and peace, and Congresses can be divided, not to mention loathe to claim responsibility for risky missions. So presidents often invoke the fullest interpretation of the Commander-in-Chief mantle, and order an operation unilaterally, Congress notwithstanding.

Congress can be expected to claim that the road to Iran must run through Capitol Hill, as in the November 1 letter to the President from 30 anti-war Senators, but the War Powers Act and a stack of case history -- much of it added by the previous, Democratic presidency -- is not on its side.

We would be getting ahead of ourselves to assume there will necessarily be an Iran attack. The Bush Administration has yet to go beyond the perfunctory "all options are on the table" statements, after all. But the question is effectively the President's to decide. He will order strikes on Iran or not, and his lame duck status, the disposition of Congress, and the vetos on the UN Security Council will have much less to do with it than his judgement of the costs of action and inaction.

Andrew W. Smith is a new Oklahoman from Nova Scotia, Canada, and can be found at http://the14thcolony.blogspot.com .


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