Impeachment and Iraq – with Jules Lobel (unpublished) – PDF

1998 Impeachment and Iraq

Politicians are not known for appreciating irony. In better times, the spectacle of self-righteous patriotism emanating from Washington this week would have been merely ridiculous. In wartime, it is tragic.

Take, for example, House Majority Whip Tom DeLay, who likes to explain piously that he always carries a miniature copy of the Constitution with him, close to his heart, to guide him as he carries out his sacred duties. DeLay, who wants President Clinton impeached for lying about an affair, must have a very tiny copy indeed, and a radically abridged version at that.

If DeLay and the Republican majority read the entire constitution as often they invoke it, they might have noticed Article I, Section 8. This central pillar of our system of government grants to Congress alone “the power to declare war.”

On Wednesday, President Clinton launched a serious military campaign against Iraq without any authorization from Congress. Unlike Clinton’s alleged perjury, this warmaking is a violation of the Constitution which subverts the structure of America’s government and the rule of law. As James Madison wrote, “In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

The framers of our Constitution, fearing that the personal motives of a single man could lead a nation into war, provided that the President could not act alone to deploy military force. They insisted that representatives of the entire nation would have to authorize warfare. Operation Desert Fox illustrates the wisdom and the legitimacy of this requirement. Many Americans and members of Congress suspect that Clinton attacked Iraq to serve his own self-interest and not the nation’s. Had Congress debated the question of whether to use force against Iraq, it would have defined our policies and objectives, and quashed suspicions about the President’s motives. Such Congressional debate and vote prior to hostilities would not have undermined military effectiveness. The Iraqi leadership has been on notice for more than a month that a U.S. attack was a likelihood. Had the President obtained authorization from Congress for his warmaking, as the Constitution requires, the only additional information Saddam Hussein would have learned was that the Congress was behind Clinton. That could have only strengthened the President’s hand in dealing with Iraq, not weakened it.

The air attacks of Operation Desert Fox are serious military operations, almost as substantial as those which initiated the 1991 Persian Gulf War. When then-President Bush tried to initiate that war without approval from Congress, Federal Court Judge Harold Greene admonished him for violating the constitution. In the case, Dellums v. Bush, Greene said that President Bush’s view would “evade the plain language of the Constitution,” and “read out of the Constitution the clause granting to the Congress, and to it alone, the authority to declare war.”

There are other parts of the Constitution that DeLay and his fellow new converts to the rule of law might benefit from reading as they ponder their responsibilities. Article VI of the Constitution, which makes treaties a part of the “supreme Law of the Land,” is one. A House of Representatives bent upon impeaching a President for violating his “constitutional duty to take care that the laws be faithfully executed” might examine whether Mr. Clinton’s launching an attack on Iraq violates the U.N. Charter, a treaty ratified by the Senate, and thus a part of our supreme law. That Charter prohibits the use of military force by one country against another except in self-defense or when authorized by the Security Council.

President Clinton, of course, never got authorization from the Security Council any more than he did from Congress before launching his attacks. In its most recent resolution on Iraq, in fact, the Council pointedly refused to authorize force. Undeterred, the President U.S. began bombing Iraq at the very moment that the Council was meeting to determine its appropriate response to the UNSCOM inspection report.

Clearly this Congress will not impeach President Clinton for engaging in warfare without Congressional approval. For at least two decades a majority of Congress has acquiesced in Presidentially-initiated military campaigns, from President Reagan’s invasion of Grenada to President Bush’s Panamanian escapade. Neither will the Congressional zealots who attack Clinton for his sex life suddenly decide to respect the UN Charter as a binding treaty commitment of the United States: to many Congressional Republicans, the United Nations is an inconvenience and our international treaties scraps of paper that can be disposed of at will.

But what does this silence from men like DeLay say about our commitment to law and our constitutional values? The irony of invoking the Constitution over alleged perjury regarding an extramarital affair—while blithely overlooking the complete subversion of the Constitution by a warmaking President—may be lost on most politicians. But the attacks against Iraq are not ironic footnotes to a ridiculous political spectacle: they are violations of the rule of law that threaten our system of democratic governance.