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As always, Caveat Lector.
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<A HREF="aol://5863:126/alt.conspiracy:525259">May 25th Is Last Day Of
Clinton's "Legal" War Power
</A>
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Subject: May 25th Is Last Day Of Clinton's "Legal" War Power
From: "Bill Mulcahy" <[EMAIL PROTECTED]>
Date: Sun, May 23, 1999 10:03 AM
Message-id: <7i9g6h$2gt6$[EMAIL PROTECTED]>
Washington Post: Sunday, May 23, 1999
Government
A 'Splendid Little War' Collides With the War Powers Act
By ROBERT L. BOROSAGE
WASHINGTON--Can the president make war on another country, even against the
will of Congress? May 25 is the last day the bombing of Yugoslavia has even
a tinge of legal authority under the War Powers Act. The next "collateral
damage" caused by the bombing campaign may be to the laws and Constitution
of the United States.
The constitutional stew comes from a poisonous mix of presidential
arrogance and congressional partisanship. President Bill Clinton launched
the war without seeking congressional support. It was to be the North
Atlantic Treaty Organization's splendid little war, wrapped up a few days
after the bombs began falling. When Yugoslav President Slobodan Milosevic
responded not by surrendering but by intensifying the ethnic cleansing
campaign in Kosovo, Clinton continued the bombing. As the debacle in Kosovo
grew, GOP leaders, still embittered by the impeachment follies and led by
conservative stalwart, House Whip Tom DeLay (R-Texas), rushed to brand this
"Clinton's war."
This produced one of the more shameless days of congressional
posturing. On April 28, a majority of the House of Representatives voted
against a declaration of war; against withdrawal from the war; for requiring
congressional approval prior to the dispatch of any ground forces; and, in a
213-213 vote, against a resolution in support of the air war. House leaders
then proceeded to work toward giving the Pentagon twice as much money as it
had asked for to pay for the war. The Senate effort was bipartisan but not
much better: Leaders of both parties agreed to a token debate before tabling
a resolution that would authorize ground forces. So the bombing proceeds not
only without the sanction of Congress but against its expressed will.
Under the Constitution, Congress is given the power to declare war.
Over the years, particularly during the Cold War, presidents often
dispatched troops without prior authority. In the wake of Vietnam, Congress
sought to rein in executive war-making by passing the War Powers Act in
1973.
Ironically, the resolution essentially delegates to the president the
power to make war for a limited period of time. It requires the president to
report within 48 hours after introducing U.S. forces into hostilities. If
Congress does not declare war or otherwise explicitly authorize its
continuation, the president has 60 days "to terminate any use" of U.S.
forces, with a 30-day extension, if necessary, to extricate them safely.
Under the resolution, the voting of funds for the troops does not constitute
congressional sanction for the war.
Clinton's 60 days run out on May 25. Led by Rep. Tom Campbell (R-San
Jose), a former Stanford law professor, a bipartisan gaggle of 17
legislators, ranging from Rep. Dennis J. Kucinich (D-Ohio) on the left to
GOP heavy Bob Barr (R-Ga.) on the right, have filed suit in federal court
seeking a declaration that the continuation of the bombing is a violation of
the Constitution and laws of the United States.
Since President Richard M. Nixon tried to veto the War Powers Act,
presidents have scorned it as an unconstitutional infringement of executive
power. But, nonetheless, every president has issued reports on the dispatch
of troops "consistent with" (not pursuant to) the War Powers Act. Most
recent conflicts--the invasions of Grenada and Panama, Clinton's strikes
against the Sudan and Afghanistan--have been over long before the 60 days
ran out. In the few cases where forces stayed longer, the president either
had congressional approval--President George Bush in the Gulf War--or worked
out a compromise with Congress that provided some color of authority--the
disastrous agreement with President Ronald Reagan to keep troops in Lebanon.
There is no prior instance where a conflict continued after Congress
explicitly voted against it.
From Vietnam onward, the courts have been reluctant to get involved in
war-powers disputes. They've offered up more excuses than a sassy teenager
has to avoid chores. The courts want the president and Congress, the
political branches, to work this out on their own.
Before Desert Storm, former Rep. Ronald V. Dellums and 52 other
legislators asked the court to enjoin Bush from attacking Iraq without first
gaining congressional authorization. District Court Judge Harold H. Greene
held that the legislators had standing, that the case could be decided. But
he found the case wasn't "ripe" because a majority of the Congress had not
indicated they thought a declaration was necessary. With Yugoslavia,
however, Congress has spoken, voting down a declaration of war and against
authorizing the air war.
With the president and Congress at loggerheads and bombs falling, the
court will again be tempted to duck. But the Constitution would be better
served if the court issued the declaratory judgment that continued bombing
is a clear violation of the laws and the Constitution.
The founders gave Congress the power to declare war for good reason.
They wanted the decision to move from peace to war, to put lives and fortune
at risk, to be made carefully, with deliberation not with dispatch. James
Wilson, with James Madison the most preeminent constitutional thinker of the
founders, wrote that the constitutional provision "will not hurry us into
war. It is calculated to guard against it. It will not be in the power of a
single man, or a single body of men, to involve us in such distress."
The founders were skeptical of the tendency of kings to make war for
their own purposes. As Madison wrote to Thomas Jefferson, "The Constitution
supposes what the history of all governments demonstrates, that the Ex.
[Executive] is the branch of power most interested in war, & most prone to
it. It has accordingly with studied care vested the question of war in the
Legisl."
Few wars better illustrate the founders' wisdom than the attack on
Yugoslavia. If there had been a full debate in Congress before the war, it
is hard to imagine that the gulf between its moral purpose of saving the
Kosovars and its utterly divorced means of bombing Yugoslavia would have
survived public airing. The doubts of the military and the intelligence
community about the air strategy would have been exposed. The nation would
have had to be committed before the pilots were.
But the White House feared Congress would not want to get involved.
Yet, it is hard to imagine that either choice--a national commitment to
intervene or a congressional demand that the president stick to diplomacy
and sanctions short of war--would have ended up worse than a war started
almost casually in the mistaken belief it would be over in days.
If the court were to call the president and Congress to account, it
would end the partisan posturing. Congress would have to decide whether to
authorize the bombing or not, and know that its decision would have
consequences.
More important, the Constitution would be strengthened. Future
presidents would be less likely to ignore Congress before launching
missiles. They might even be encouraged to seek a debate and declaration
ahead of time. If their greater accountability made easy recourse to
cruise-missile diplomacy less likely, the nation would surely be well
served.* - - -
Robert L. Borosage Is Co-director of the Campaign for America's Future and
an Adjunct Professor at the American University School of Law
Copyright 1999 Los Angeles Times. All Rights Reserved
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Aloha, He'Ping,
Om, Shalom, Salaam.
Em Hotep, Peace Be,
Omnia Bona Bonis,
All My Relations.
Adieu, Adios, Aloha.
Amen.
Roads End
Kris
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