A Chance for Clinton to Have It Both Ways

WASHINGTON — Washington.-- Bob Dole, of course, is being laughably two-faced when he demands that President Clinton should get prior congressional approval before sending American military forces to Haiti or Bosnia.

During all the foreign adventures of the Reagan-Bush years -- Grenada, Lebanon, Nicaragua, Panama, others -- Republicans were insistent on the president's right to conduct foreign policy unmolested by Congress. This culminated in President Bush's claim -- untested in the end, but supported by Senate Minority Leader Dole -- that he could constitutionally send half a million American troops into battle halfway around the world, in defense of Kuwait, without congressional approval.


The 1973 War Powers Act requires congressional approval within 90 days after a president sends U.S. forces to situations of actual or imminent "hostilities." Republicans have long claimed that this law is an unconstitutional infringement on executive power. Yet Senator Dole's proposed legislation on Haiti and Bosnia is a far greater infringement: It would require congressional approval before Mr. Clinton could send troops at all.

Republican hypocrisy duly noted, though, President Clinton's response is still a mistake. He says he will "strenuously oppose" Mr. Dole's maneuvers, which he denounces as "attempts to encroach on the president's foreign-policy powers." What Mr. Clinton should do is to embrace Senator Dole's proposal. He should make clear he won't send American troops in harm's way without congressional authority, then he should ask for it and make his case.


Why? Several good reasons.

First, intellectual consistency. For two decades, Democrats in Congress have denounced presidential military free-lancing as illegal and unconstitutional. Should that change just because a Democrat now sits in the White House? Even though Republicans' principles on this point seem to depend entirely on whose ox is gored, Democrats ought to aspire to a higher standard.

Second, Mr. Dole is right this time (about the legal issue, if not about Bosnia and Haiti). The Constitution declares that "Congress shall have power . . . to declare war." The flagrant disregard of this provision in recent decades is the biggest scandal in constitutional law.

As constitutional scholar John Hart Ely says in his recent book, "War and Responsibility," the intention of the constitution's framers "can be obscure. . . . In this case, however, it isn't." They clearly intended to require prior congressional approval for all military engagements, "declared" or undeclared, except for responses to genuine emergencies like surprise attack. As Professor Ely argues, nothing in 200 years has made this requirement impractical or obsolete.

In the eternal battle between the branches, forcing Congress to take its war responsibilities seriously would actually be a victory for the Executive. That is the third reason the president should reconsider his opposition to Senator Dole.

The central message of Professor Ely's book is that Congress, not the president, has been the beneficiary of this constitutional malpractice. "The legislative surrender was a self-interested one; accountability is pretty frightening stuff." Members of Congress are free to carp, back-seat-drive and second-guess presidential actions, but they don't need to share the burden of deciding to risk American lives and treasure abroad -- or the burden of deciding not to.

A congressional debate and vote would force the American people, as well, to reach a decision and live with the consequences. That's the fourth reason.

Let people sort out their own emotions about televised scenes of starving babies one day and mutilated American corpses the next. Let them call in to radio shows and write their members of Congress. But let no one claim that the president had sneaked America into war without the people's knowledge or against their will (or, on the other hand, that he had cravenly failed to act when American security or compassion required it).


Thus a final consideration: For President Clinton, restoring Congress' war power would be good, self-interested politics. Why on earth should he even want the ability to commit American soldiers abroad without protective cover -- for himself, as well as for them? A congressional debate and vote would give him that cover.

To be very cynical for just a tiny moment, it's not as if Mr. Clinton's own views on intervention in Haiti or Bosnia are all that clear or strong. There are occasions when true conviction may call upon a president to lead an unwilling nation into war, in the hope that the nation will thank him eventually. But now is surely not one of those occasions.

If the president believes that, on balance, it serves America's interests for American soldiers to be involved in Haiti or Bosnia, he should lay out the arguments. He might well persuade. No one in American politics is a better salesman. If he doesn't persuade, he's off the hook. American blood and treasure will not have been expended. And if disaster and regret ensue, he will not be to blame.

In short the president, and not the Congress, will be able to have it both ways. Isn't that what every politician wants?

TRB is a column of The New Republic, written by Michael Kinsley.