When the People's Voice Really Matters


January 10, 1991|By George F. Will

WASHINGTON — SECRETARY of State James Baker, pausing at a television studio en route to his plane, gave a crisp and historic answer -- ''more helpful'' -- to the crucial question: Would a congressional vote of approximately 60 percent for and 40 percent against authorizing the president to use force in the Persian Gulf be more helpful or less helpful than no vote at all?

With those two words, and others that Speaker Tom Foley lingered in ABC's green room to hear -- words welcoming congressional debates and votes -- Mr. Baker signaled that the administration did not want to compound a diplomatic and military crisis with a constitutional crisis.

Whatever Congress passes before or after January 15 will be something short of a declaration of war. And even a declaration of war need not mean the immediate collision of armed forces. Britain and France declared war on Germany on September 3, 1939, two days after Germany invaded Poland. But by mid-November, the only two nations engaged in combat in the European theater were Finland and the Soviet Union. The first ground combat between British and German forces did not occur until April, 1940, in Norway.

January 15 is commonly called a deadline, that being the date by which Iraq was required to leave Kuwait. But it really is a starting line: Starting then, the use of force is credible because authorized by the United Nations. But that authorization has never by itself sufficed to make the threat of force credible. When the United States joined the United Nations, it did not repeal any portion of the Constitution. A U.N. vote cannot legitimize a president's initiation of a war.

The core principle of the republican form of government is representation: Vital decisions are made by persons whose right to decide is the result of election. It would be a fundamental derogation of that principle for the U.S. Government to delegate to representatives of foreign regimes the right to send American citizens into battle.

This crisis is a learning experience, an occasion for learning more about constitutional language. Article I, Section 8, enumerating Congress' powers, includes: ''to declare war, grant letters of marque and reprisal. . . .'' The obscure points make the large point clear: Initiating armed conflict is Congress' prerogative.

In the 18th century, undeclared wars were called ''imperfect,'' meaning incomplete, wars. Governments often conducted them by issuing letters of marque to private vessels and letters of reprisal to public naval vessels, authorizing them to take hostile actions against other vessels. The issuance of such letters indicated the commencement of ''imperfect'' war. Note that the Constitution gives Congress primacy in initiating even such gray-area warfare.

Developments at the extremes of the spectrum of war -- nuclear and guerrilla -- have fostered the expansion of presidential autonomy in war-making. For years, presidents have been followed everywhere by a military aide carrying the ''football'', the satchel containing codes for launching nuclear attacks. The ''football'' has been an emblematic fact of the hair-trigger world of ICBMs and missile-launching submarines off America's coasts. An enveloping threat of sudden attack made Congress feel -- and in fact be -- marginal, tentative and passive regarding possible war-making against the principal enemy.

Guerrilla warfare blurred several distinctions: What constitutes war rather than some other forms of violence? What is the political and legal status of war that is not quite civil war and not tidily war between sovereign states -- massed armies crossing international borders?

The difficulty of fashioning America's responses to violence in a context of such blurring (as in Indochina), and the fact that an obliterating war has been, potentially, just minutes away, led President Lyndon Johnson's under secretary of State, Nicholas Katzenbach, to tell Congress in August, 1967, that, ''The expression of declaring war is one that has been outmoded in the international arena.'' With Mr. Baker's words encouraging congressional action, the administration backed away from -- or at least skittered crab-like sideways from -- a position similar to that.

Mr. Baker did not go beyond asserting that, ''The president has not wanted to ask for a resolution unless the leadership of the Congress could assure him that such a resolution would be forthcoming, because your hand would be weakened were it not forthcoming.'' Wrong. The hand that holds the sword would be not merely ''weakened'' but tied. In a military situation such as this, absent a congressional authorization there can be no legal use of, hence no credible threat of, force.

A 60-40 split among the people's representatives, after due deliberation, is not the kind of consensus presidents prefer. But a 60-40 vote would be recognized by 100 percent of thinking citizens as fulfilling 100 percent of constitutional propriety for such a decision, and would give to the decision momentum for respect among 100 percent of clear-minded citizens.

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