War Powers Debate Heating Up Again Clinton Wins Permission from U.N. to Invade Haiti, but Hasn't Asked Congress

August 07, 1994|By CARL M. CANNON

WASHINGTON — Washington. -- Haiti has been threatened with a U.S. military invasion. The United Nations has given the United States its approval. The Marines are doing maneuvers in the Caribbean. President Clinton has discussed America's obligations in a post-invasion Haiti.

All of this has happened, and yet Mr. Clinton still hasn't asked permission of Congress, and, through it, the American people.

Recent history is rife with examples of presidents committing troops abroad without congressional approval -- or even prior knowledge. But the Constitution gives war-making powers solely Congress, and so, once again, a national debate is beginning to percolate over just who has the authority to commit U.S.

troops in battle.

Mr. Clinton, a constitutional lawyer, knows that the Constitution grants this authority to Congress. In Article I, Section 8, which spells out "Powers of Congress," the founders wrote that "The Congress shall have power . . . to declare war."

Yet, modern presidents seem to have a problem with this.

As commander-in-chief, each wants to dispatch troops on his own instead of seeking the permission of 535 fellow politicians. "I cannot consult with 535 strong-willed individuals," President George Bush said on the eve of the Persian Gulf war. "Nor [does] the Constitution compel me to do that."

Many of the nation's most prominent constitutional scholars disagreed with Mr. Bush, but the last time a president sought a declaration of war was Dec. 8, 1941. Since that time, the United States has lost more than 100,000 soldiers in Korea and Vietnam, and has sent its troops to fight -- and die -- in dozens of lesser conflicts.

In 1973, in response to Vietnam, Congress passed the War Powers Act, which attempted to rein in a president's tendency to conduct foreign policy, even if that meant war, as though it were nobody's business outside the White House.

The law requires the president to seek congressional approval within 60 to 90 days after sending U.S. forces to situations of actual or imminent "hostilities." If the president does not, Congress has a series of remedies it is supposed to enforce, including cutting off the funding of the military mission.

Foreshadowing the conflict that was to persist for the next 21 years, President Richard M. Nixon vetoed the War Powers Act. Congress overrode the veto, but subsequent history, including the looming conflict with Haiti, suggests that it hardly seems to have mattered.

Mr. Nixon and all the presidents who succeeded him -- Bill Clinton included -- have claimed that the War Powers Act infringes on the executive branch's authority to conduct foreign policy. As it turned out, that was only the beginning, constitutional scholars say, of what was wrong with the law. Among its other problems are these:

* The law was weak to begin with.

The invasions of Grenada and Panama, for instance, had ended long before the 60-day provisions of the War Powers Act kicked in. In the age of missile attacks and lightning-quick 2 a.m. air and sea attacks against small countries, the law is of no practical consequence.

Thus, last year, when Mr. Clinton launched a series of Tomahawk cruise missiles into downtown Baghdad in retaliation for an Iraqi plot on the life of former President Bush, the U.S. attack -- an act of war under international law -- was under way before most members of Congress had heard of it.

* Congress hasn't had the will to enforce the law.

The withdrawal mechanism has never been activated, even in situations in which Congress had misgivings about the White House-ordered U.S. military mission. In 1983, a majority of Congress seemed on the verge of ordering the return of U.S. Marines sent to Lebanon, but Congress ended up extending the deadline by 18 months. The Marines were brought home only after a truck bomb killed 241 of them.

* The courts have been reluctant to intervene.

Although every president has claimed the law infringes on his prerogative, a more serious objection may come from the other end of the political spectrum.

In 1990, Rep. Ronald V. Dellums, a former chairman of the Congressional Black Caucus and the future chairman of the House Armed Services Committee, led a group of liberal members of Congress in suing Mr. Bush, saying that War Powers Act or no War Powers Act, the president does not have the constitutional authority to unilaterally commit U.S. troops to battle.

"If the president takes it upon himself . . . to initiate such a war without the unequivocal consent of Congress, the victim of Iraqi aggression will be not just Kuwait, but the Constitution of the United States," the liberal House members argued in their lawsuit.

A debate -- and a vote -- did take place subsequently, but it was not ordered by the federal courts. Over the years, the Supreme Court has been chary about mediating disputes between the executive and legislative branches -- even over such important questions -- if the debate is essentially political in nature.

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