WHAT WILL BE THE LONG-TERM CONSEQUENCES OF CLINTON'S UNCONSTITUTIONAL WAR?
Douglas W. Kmiec
April 19, 1999
James Madison observed that "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. . . . (T)he trust and the temptation
would be too great for any one man."
NATO has been bombing Yugoslavia since March
24 and it appears the U.S. will be saddled with a
long military commitment through the unilateral
action of a president far more susceptible to
temptation than trust. More than a half-million
Kosovar Albanians, on whose behalf NATO
supposedly intervened, have now been driven from
their homes. Not surprisingly, significant numbers of
these refugees have been killed by NATO's own
"friendly" or errant fire. As President Clinton calls
up thousands more American reservists to launch a
major buildup in the NATO airstrikes, which are
already numbering 450 to 500 sorties a day, it is
way past time for Congress to realize that
something is seriously amiss.
How did we get here? Less than two months ago,
Secretary of State Madeleine Albright and the
Clinton State Department reassured Congress that
any U.S. troops assigned to NATO would be sent
to Kosovo only if a peace plan with Yugoslav
President Slobodan Milosevic was successfully
reached. Said Undersecretary of State Thomas
Pickering, "We are not seeking to introduce
American ground forces into a situation in which
they would have to engage in combat to obtain an
objective."
Pickering's evasion may be literally true: As of the
moment there are no ground troops in combat and
we remain well short of "obtaining an objective," as
even Defense Secretary William Cohen and the
Joint Chiefs of Staff acknowledge.
This is not an argument for ignoring the genocide or
"ethnic cleansing" of Milosevic. Destroying cities
and innocent life may indeed chasten this tyrant, but
have we truly exhausted all other courses, like a
more complete demonstration (and economic
sanctioning) of his war crimes by the international
community, or coordinated efforts, a la Augusto
Pinochet, to secure arrest and trial before the
International War Crimes Tribunal? We rightly
want Milosevic to abide by recognized legal
standard, but our case for having him do so is
greatly weakened by disregarding it ourselves. As a
former senior lawyer for the Naval War College
recently pondered, "Does our government believe
that other nations are required to follow the law but
the United States is not?"
The Constitution gives Congress the power to
declare war. In the minds of the founders, the
president's designation as commander in chief
generally did not vest without prior legislative
approval. English kings abused the prerogative of
war, and so the framers deliberately transferred the
power to the entire legislative branch (House and
Senate) to make its initiation more difficult. The
idea was to "clog" the path to war requiring
deliberation by a diverse group before the risks and
costs of a military campaign could be imposed.
Advocates of more expansive presidential authority
sometimes contend that the United States has been
involved in more than 200 armed conflicts, while
having declared war only seven times. However,
with few exceptions, these were small-scale
adventures. True, the Mexican War may well have
been triggered by James Polk's agitations along the
Texas border, but Congress declared war
nonetheless. Even Lincoln sought after-the-fact
authorization for his emergency measures in the
Civil War. The World Wars speak for themselves,
and Harry S. Truman was able to repel a North
Korean invasion, but only at the cost of a Supreme
Court decision sanctioning the president for
exceeding the powers of his office.
President Clinton has neither asked for nor
received legislative authorization to bomb
Yugoslavia. Clinton didn't even formally notify
Congress of his military actions until two days after
the bombing began--conveniently after Congress
left town on Easter recess. Today Clinton's tenuous
claim of authority rests on little more than two
vaguely and differently worded non-binding
resolutions. In this, ironically, Clinton is modeling
his presidential behavior on the expansive
conceptions of the Vietnam era, a war a younger
Bill Clinton protested as unjust and unconstitutional.
Nor does the UN Charter authorize the bombing.
How could it?
Clinton deliberately chose not to take the matter to
the Security Council, knowing that the bombing of
a foreign sovereign state would be vetoed as a
"breach of the peace or act of aggression." In any
event, UN blessing alone could not deprive the
American people of the full deliberation by both the
executive and the legislative branches that is
constitutionally prescribed. And of course, the
same goes for NATO, which has no authority to
take "defensive" action outside the territory of its
member states, which Yugoslavia is not.
In 1973, Congress passed the War Powers Act in
response to the Johnson and Nixon engagements in
Vietnam. By this act, the president may introduce
the military into hostilities by a declaration of war,
specific statutory authorization (like that secured by
George Bush for the Persian Gulf war) or a national
emergency created by attack, but not otherwise.
Rep. Tom Campbell (R-Calif.) has introduced a
resolution to compel Congress to follow the act by
taking a vote either to declare war or cease the
bombing. Campbell favors the latter, speculating
that it would be preferable to expend billions of
dollars assisting the now displaced refugees with
humanitarian aid than to forcibly overpower
Milosevic's hold on Kosovo, which the Serbs have
claimed as their own since 1913.
Debatable perhaps, but that's just the constitutional
point--it should be.
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