On Going to War

October 29, 1990

Senators worried that President Bush will send American troops into action against Iraq while Congress is in recess are trying to compensate for an institutional feeling of inadequacy and frustration. Having all but abandoned the Vietnam-era War Powers Act as a means of exerting a legislative role in this ultimate governmental action, the senators are searching for an alternative.

Chances are they will get nothing better than window-dressing. Mr. Bush, like presidents before him, is not about to cede his authority to command the armed forces and conduct foreign policy despite Congress' constitutional power to declare war and fund U.S. military activities.

In recent days, as the congressional recess approached, Senate majority leader George Mitchell and House speaker Thomas Foley proposed to call Congress back into session in event of emergency. Sen. Richard Lugar, an Indian Republican, offered bipartisan concurrence. But none stated whether the reassembly would take place before or after fighting has commenced.

Instead, Senator Mitchell talked in absolute terms about congressional war powers that are actually quite murky under law and have precious little substance in reality or recent history. He said, for instance, that "under the Constitution the president has no legal authority -- none whatsoever -- to commit the United States to war. Only the Congress can make that decision."

Oh? In the republic's 200 years, there have been only five formal declarations of war. Yet presidents have sent U.S. forces into action more than 125 times without congressional approval. Formal declarations of war are about as obsolete as the stylized 18th-19th century mode of battle.

Unlike Senators Mitchell and Lugar, Maryland's Sen. Paul S. Sarbanes has not left open the question whether congressional action should be prospective or retrospective. Mr. Sarbanes said the Bush administration needs "to come to the Congress, lay out what it is . . . proposing to do and for what purposes and get a judgment by the Congress that the administration ought to be given authority to do that." He added that the element of surprise need not be forfeited if Congress makes its commitment well in event of any action.

Can Senator Sarbanes be serious? Does he really think this Democratic Congress would give a Republican president the biggest war-making blank check in history? And if it were to refuse such authorization once it has been thrashed out, budget fashion, on the banks of the Potomac, what kind of a position would that create for our forces and international coalition in Saudi Arabia?

Perhaps if the United Nations were to authorize in advance military action against Iraq, some formal approval of a prospective action by the U.S. Congress might be in order. For the moment, however, this remains speculative and hypothetical.

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