So Where Did the Volume Go?

"Gene Healy's another smart person at Cato," an acquaintance said. "He's making powerful arguments that the Bush Administration must acknowledge Congress's power over war and peace in foreign affairs."

So I went to read what Gene Healy had written. I was expecting considerable volume: I had read a short piece by him on the "executive arrogance" of the Clinton years, calling Clinton's foreign policy:

...shameful... brazen... abuse of executive authority... contempt for constitutional limits ... Nixonian... the cluster-bomb humanitarianism of the war on Serbia...

But the volume turned out to be extremely muted. After all, if Healy really does believe that Clinton's conduct of foreign affairs in Bosnia, Kosovo, Haiti, and Afghanistan was "...shameful... brazen... abuse... contempt," what words must have come to Healy's mind to apply to many aspects of the Bush Administration's conduct of the campaign against terror? Yet somehow none of these words make it into Healy's discourse, which seems rather... milquetoast... by comparison. His arguments may be right--but if it was so important to express them so... forcefully in judging the Clinton Administration, isn't it even more important to express them forcefully today?

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War with Iraq: Who Decides?

February 26, 2002

by Gene Healy

Gene Healy is senior editor at the Cato Institute.

With even the usually cautious Secretary of State Colin Powell calling for "regime change" in Baghdad, it's become increasingly clear that Iraq is the next target in the war on terror. According to press accounts, administration officials are drawing up plans for the president's review, examining whether massive U.S. ground forces will be needed, or if instead the Iraqi National Congress can take the place of the Northern Alliance and do most of the fighting on the ground.

It's nice that President Bush is looking at all the military options. But where is it written that one man, the president, gets to decide whether the United States goes to war with Iraq? Not in the Constitution, certainly. The Constitution gives the war power to Congress. In this case Congress has not authorized military action against Iraq. Unless and until Congress does, President Bush must not take such action.

The suggestion that the president should have unilateral power to make war was decisively rejected at the Constitutional Convention of 1787. As delegate Elbridge Gerry of Massachusetts put it, he "never expected to hear in a republic a motion to empower the executive alone to make war." Instead, the Framers agreed that Congress would have the power to declare war.

It's true that the Constitution makes the president the "Commander in Chief" of the US Army and Navy. But as Alexander Hamilton noted in Federalist No. 69, this does no more than make the president the "first General" of America 's armed forces. And generals don't get to decide which countries we go to war with.

In the case of Iraq, Congress has not passed a formal declaration of war, or authorized any military action whatsoever. Even the sweeping Use of Force resolution approved by Congress three days after the attack on the World Trade Center falls short of authorizing military action against Iraq. That resolution would sanction war with Iraq only if it is determined that the Iraqi government "aided" the commission of the terrorist attacks of Sept. 11. The evidence for that proposition seems far weaker than it did in October, when Czech government officials announced that hijacker Mohammed Atta had met with an Iraqi intelligence agent in Prague last April. Recent reports in the New York Times, the Chicago Tribune, and the Czech press have cast doubts on whether that meeting ever occurred.

Others have pointed to the anthrax mailings that alarmed the public in the months following Sept. 11 as a justification for war with Iraq. But despite intense investigation, the U.S. government has not found any evidence linking Iraq to the anthrax attacks. As Director of Homeland Security Tom Ridge put it recently, "based on the investigative work of many agencies, we 're all more inclined to think that the perpetrator is domestic."

Moreover, even if the government unearths evidence that Saddam Hussein supplied the anthrax, Congress would still need to authorize action against Iraq. By its terms, the current Use of Force resolution only approves military action against those nations, organizations or persons involved in "the terrorist attacks that occurred on September 11, 2001." Thus, Congress has not yet authorized a military response to any subsequent terrorist attacks.

Nonetheless, anyone following news accounts of the current debate on Iraq could be forgiven for thinking that President Bush has all the authority he needs to wage war on that country. Our elected representatives certainly seem to think so. Senatorial hawks, such as Joseph Lieberman (D.-Conn.), John McCain (R.-Ariz.), and Trent Lott (R.-Miss.) have been reduced to pleading their case via the U.S. mail. In a Dec. 5 letter to the president, Sen. Lieberman, et. al., wrote, "we believe we must directly confront Saddam, sooner rather than later." Even Sen. Daschle (D.-S. Dak.), initially reluctant to endorse military action, now merely bleats that Congress would like to be "included, consulted, and [wants] to work with the administration" -- not that the president lacks the authority unilaterally to wage war on Iraq.

But if the president can take us into war with Iraq without so much as a by-your-leave to Congress, then Congress' power to declare war isn't worth the parchment it's written on. Congressional hawks and doves alike have the power -- and the responsibility -- to vote on the question. And for his part, President Bush ought to acknowledge that until Congress votes him the authority to attack Iraq, the Constitution stays his hand.

January 20, 2001

Clinton's Legacy: Another Imperial Presidency

by Gene Healy

Gene Healy is an attorney in Washington, D.C., and the author of the Cato Institute policy study "Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years."

As President Clinton's tenure ends, pundits are trying to define the "Clinton Legacy." Many have focused on the Lewinsky scandal and impeachment, but Clinton may find his legacy in a less sordid but no less shameful aspect of his presidency: his abuse of executive authority in foreign affairs.

Undeclared wars and contempt for constitutional limits on presidential power mark Clinton's foreign policy. Future historians may well remember Clinton as the man who ensured that the "Imperial Presidency" would not vanish with the end of the Cold War.

In his 1973 book coining that phrase, historian Arthur Schlesinger Jr. warned that America's rise to Cold War leadership had transformed America's chief executive into a sort of elected emperor. As Schlesinger explained, though the framers had assigned the power to declare war to Congress, a succession of presidents through the latter half of the 20th Century had arrogated that power to themselves.

Despite his antiwar background, Clinton adopted a Nixonian view of presidential power. From the threatened invasion of Haiti in 1994 to the cluster-bomb humanitarianism of the war on Serbia in 1999, Clinton treated the constitutional command that Congress alone can declare war with less respect than the Imperial Presidents that preceded him. President Reagan's attack on Grenada and President Bush's invasion of Panama were undeclared wars, but they had the constitutional fig leaf of the need for surprise. Clinton's conduct has been more brazen.

With 1994's Haiti intervention, Clinton stood ready to launch a 20,000-troop invasion, while asserting that he did not need congressional authorization to do so. In Serbia, the air war from March to June 1999 represented the largest commitment of American military personnel and materiel since the Persian Gulf War.

Nonetheless, Clinton refused to go to Congress for a declaration of war. Indeed, administration officials would not admit that the bombing campaign over Serbia was a war. White House spokesman Joe Lockhart made that clear in an April 1999 exchange with a reporter:

Q: Is the President ready to call this a low-grade war?
Lockhart: No. Next question.

Q: Why not?
Lockhart: Because we view it as a conflict.

Q: How can you say that it's not war?
Lockhart: Because it doesn't meet the definition as we define it.

Apparently, it depends on what your definition of "war" is.

And then there were the attacks known as the "Wag the Dog" bombings. The first came in the August 1998 missile strikes on Sudan and Afghanistan, three days after Clinton's grand jury testimony and in the midst of a media firestorm over his televised non-apology for the Lewinsky affair. The administration has refused to release the evidence it claims to have relied on for its assertions that the Sudanese pharmaceutical plant made nerve gas and that its owner was linked to terrorist Osama Bin Laden.

The second "Wag the Dog" bombing occurred on the eve of the House impeachment debate when the president ordered air strikes on Iraq. Attempting to explain the curious timing of the attack, Clinton asserted that "we had to act and act now [because] without a strong inspections system, Iraq would be free to retain and begin to rebuild its chemical, biological, and nuclear weapons programs—in months, not years." As a result of the president's action, we've since gone two years without any weapons inspections.

The timing of Clinton's actions gave rise to suspicion that he was applying a chillingly literal version of Clausewitz's dictum that war is politics by other means. That sort of suspicion was by no means alien to our Constitution's framers. As Madison put it, if the power to declare war had been vested in the president rather than Congress, "the trust and the temptation would be too great for any one man."

Indeed, no one man should be entrusted with the power to lead the nation into war. The Constitution rightly vests Congress with the power to declare war. The Clinton years have made clear how important it is for Congress to reclaim that power.

Posted by DeLong at September 01, 2002 07:55 PM | Trackback