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

THE BALTIMORE SUN

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.

The court has been criticized in some quarters for this approach, but the way in which some congressional Republicans have changed their reading of the Constitution since a Democrat got in the White House has tended to vindicate the high court's reluctance.

There is, however, a committed core of House members who opposed Mr. Bush in 1990 and who are urging Mr. Clinton to seek congressional approval as well.

Mr. Dellums has been quieter about his opposition this time around, perhaps because the Black Caucus is urging the president to act in Haiti, but he was one of 103 members who signed a letter urging Mr. Clinton to get congressional approval before launching an invasion.

"Even though there's a Democrat in the White House, to some of us, the issues are the same," said Rep. Don Edwards, a California Democrat. "We want 50 percent of the [invading] force to be United Nations, we want to debate the issue on the floor, and we want a vote before the president does anything. Otherwise, it's just the old gunboat diplomacy."

So far, the president's response has been a vague promise to "consult" with Congress.

"That doesn't mean much of anything," Mr. Edwards said.

It was apparent before Mr. Clinton arrived in Washington that Congress had not succeeded in putting the brake on the willingness of the executive branch to make war on its own.

President Ronald Reagan invaded Grenada in 1983 with only the barest consultation with some selected congressional leaders --and those consultations were done in secret.

Likewise, Mr. Bush didn't get congressional approval before invading Panama in 1989. And even though he ended up getting congressional approval before attacking Saddam Hussein's Iraqi forces, Mr. Bush already had committed 500,000 U.S. troops to the region, secured U.N. backing for an invasion, assembled a multinational military force and given Mr. Hussein a deadline for getting out of Kuwait.

In other words, he had made it all but impossible for Congress to stop his plans. Moreover, he had said publicly that he wasn't bound by the vote anyway.

Little wonder, then, that Sen. Dale L. Bumpers, an Arkansas Democrat, once labeled the War Powers Act a "eunuch." Or that former Sen. Lowell P. Weicker Jr. of Connecticut called it "de facto dead."

The pressing question is why Congress hasn't done more to re-assert its authority over one of the most important questions with which a democracy must come to grips.

At the time the United States was formed, the war-making power in almost every nation in the world rested with the executive -- usually a king or a monarch.

In 1787, at the Constitutional Convention in Philadelphia, delegate Pierce Butler of South Carolina proposed that the president have similar powers, although he called in vague language for the president to make war only "when the nation will support it."

Delegate Elbridge Gerry of Massachusetts objected vehemently, replying that he "never expected to hear in a Republic a motion to empower the executive alone to declare war."

The prominent Virginia delegation agreed. George Mason, a prime mover behind the Bill of Rights, told the convention that his motivation was "for clogging, rather than facilitating war." He explained that he was opposed to "giving the power of war to the executive because he is not safely to be trusted with it."

This is the view that ultimately prevailed. In an exchange of letters in 1789 between two close friends and future presidents, Thomas Jefferson and James Madison expressed confidence that the young nation had made the right choice.

"We have already given . . . one effectual check to the dog of war," Jefferson wrote.

"The Constitution supposed what the history of all governments demonstrates -- that the executive is the branch of power most interested in war and most prone to it," Madison agreed. "It has accordingly, with studied care, vested the question of war in the legislature."

As it turned out, this was the beginning, not the end, of a 200-year debate.

In 1801, Jefferson forbade the U.S. Navy to retaliate against Tripoli pirates because Congress had not declared war on them.

Alexander Hamilton, who had opposed having Congress vested with war-making responsibility, mocked the president for this decision.

Hamilton had predicted during the original debate that such a provision would put the new democracy at a great disadvantage against a British king should it ever be required to fight with England again.

He turned out to be prophetic. In 1812, Congress approved President Madison's request for a declaration of war but became so utterly bogged down in questions revolving around raising an army and giving it sufficient authorization to fight, that U.S. soldiers were slaughtered on various battlefields and the nation itself nearly conquered.

Except for during the Spanish-American War of 1898 (forced on the White House by a belligerent Congress), however, Jefferson and Madison's judgment about human nature seemed to have been borne out.

Time after time in this century, Congress has tended to be much more reluctant than the executive branch to commit U.S. troops to battle. But at the same time, Congress has been strangely content to let presidents grab the war-making authority conferred on it by the founders.

Scholars who have studied this issue have concluded that Congress doesn't really want the power.

Stanford Law Professor John Hart Ely, author of a 1993 book about war-making responsibility, has written that the modern approach began in 1950, when Congress let President Harry S. Truman wage war, saying hardly "a peep" until the war turned sour.

And he characterizes the history of Congress' actions since the advent of the War Powers Act to be a study in "spinelessness."

"The Congress itself, when it comes right down to it, doesn't want the responsibility," said Catherine Kelleher of the Brookings Institution. "There's a dread that they will get into a situation in public opinion where support will evaporate when the body bags start coming home."

Carl Cannon covers the White House for The Baltimore Sun.

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