Congress Lets Slip the Dogs of War – Letter to the Editor NY Times – with Jules Lobel (unpublished)

2002 NYT Letter October 13 Congress Lets Slip the Dogs of War

To the Editor:

In “Congress Lets Slip the Dogs of War” (Oct 13, 2002) a professor is quoted as saying that after the congressional authorization to use force against Iraq, it was “now difficult to conceive of any legal or constitutional challenge” to the war.  However,  if the U.S. goes to war without Security Council approval that would violate the U.N. Charter which permits unilateral military action only in self-defense (to counter an armed attack) of the United States. While it may be that Congress can override our solemn treaty obligations, it cannot override fundamental or peremptory norms of international law and it is generally accepted that the principles of the United Nations Charter prohibiting the use of force constitute such norms. While no suits against U.S. war making have actually resulted  in outright victories, this is a result of politics and not a lack of legal merit.

Michael Ratner, President, Center for Constitutional Rights

Jules Lobel, Professor of International Law, University of Pittsburgh Law School


Text of Opinion

The World; Congress Lets Slip The Dogs of War

By NEIL A. LEWIS OCT. 13, 2002

IN the Congressional debate over empowering President Bush to wage war against Iraq, much of the argument centered on which words to use. Would they give the president too much power or too little?

But in the end, legal scholars and constitutional historians said, the very act of Congress approving an explicit resolution authorizing force, as it did on Thursday, rendered those concerns moot.

”This statutory authorization is the last word on the domestic legal basis for the use of force in Iraq,” said Prof. Peter Raven-Hansen of the George Washington University Law School. He said it was now difficult to conceive of any legal or constitutional challenge to Mr. Bush’s removing Saddam Hussein from power and destroying his most destructive weapons.

Article I, Section 8 of the Constitution gives Congress the power to declare war. But while presidents have sent troops into action perhaps 200 times, Congress has declared war on just five occasions: the War of 1812, the Spanish-American War, the Mexican War, World War I and World War II.

In fact, according to the Congressional Research Service, many military ventures throughout the nation’s history have been authorized by statute rather than by formal declaration of war. The nation’s first military action was authorized in this way, with Congress enacting a series of statutes in 1798 to prevent France’s interference with American trading vessels.

Last week’s resolution, then, was not a legislative innovation, though it was more broadly worded than many authorizations used by past presidents to wage war. The 1990 resolution used by Mr. Bush’s father to begin the gulf war required the president to inform Congress that diplomacy had failed before he launched any military action. The current resolution allows President Bush to wage war as long as he informs Congress within 48 hours after the onset of military action.

The earlier resolution also referred to specific United Nations Security Council resolutions that could be enforced by military action. The resolution enacted Thursday is more vague, allowing military action to enforce ”all relevant” resolutions.

Even the flimsiest resolutions, once enacted by Congress, are hard to challenge. The 1964 Gulf of Tonkin resolution authorizing President Lyndon B. Johnson to use force because of an asserted attack on United States vessels in Asian waters has come to stand for an inattentive Congress unintentionally authorizing the Vietnam War. But it withstood years of legal challenges.

Still, the latest resolution voted by both chambers was designed to inoculate them from some legal attacks. It is specific to Iraq, while the Gulf of Tonkin resolution was more open-ended and was based on the allegation of American forces having been attacked. Further, it could certainly never be plausibly argued that members of Congress did not understand the administration’s intentions in Iraq.

”The vices of that resolution have not been repeated,” Professor Raven-Hansen said.

In addition, the new resolution’s reporting requirements take account of the War Powers Resolution enacted after the Vietnam War to give Congress a role. The Senate majority leader, Tom Daschle, Democrat of South Dakota, seemed to have this in mind when he noted the enormous power being put into Mr. Bush’s hands.

”We are giving the president extraordinary authority,” he said on the Senate floor. And he admonished the president not to use the resolution to ignore Congress.

Whether or not he does, the power to wage war has now passed clearly from Congress to the White House.