Commentary

War by Legal Loophole

President George W. Bush is planning a war with Iraq that could involve 250,000 U.S. troops. Shouldn’t he get congressional authorization, as his father did for the first Gulf War? Not according to Bush administration lawyers. As the Washington Post reported recently, they’re floating the ingenious and brazen argument that the congressional resolution that authorized Gulf War I still has enough life left in it to authorize Gulf War II.

How can a joint resolution passed in 1991 to give Bush the father authority to expel Saddam Hussein from Kuwait authorize Bush the son to take Baghdad 11 years later? A good question, the answer to which is not apparent from reading the resolution, codified as Public Law 102-1. The operative clause of the congressional resolution incorporates a dozen UN Security Council resolutions, and authorizes use of U.S. armed forces to implement them. None of the enumerated Security Council resolutions even mentions weapons of mass destruction or Hussein’s involvement with international terrorism. Instead, they all condemn the dictator’s invasion of Kuwait and focus on various means to get him to disgorge it.

The administration’s argument, to the extent it can be discerned, seems to rest on a phrase from the key UN Security Council resolution incorporated by the Gulf War resolution. Security Council resolution 678 authorized “Member States co-operating with the government of Kuwait” to use “all necessary means” to expel the Iraqi occupiers from Kuwait and to “restore international peace and security in the area.” With Hussein in power, the argument goes, “international peace and security” have not been restored. Put aside the fact that Kuwait is not on board for Gulf War II, and thus the U.S. cannot be said to be “cooperating” with it if we drive towards Baghdad. Isn’t the argument that war is justified whenever Iraq can be said to threaten “international peace and security” an argument that’s broad enough to be invoked not just against Hussein’s regime, but any future Iraqi regime? Did Congress in 1991 delegate war-making authority in perpetuity to the president?

Such tendentious stretching of legal language might do for a trial lawyer zealously pressing his client’s interest. For a president seeking legal justification to lead troops into battle, something more is required: new and independent authorization for a new war.

Some in Congress would rather not vote on the issue. Senate Minority Leader Trent Lott (R-Miss.) has treated the congressional debates over Iraq as a partisan annoyance rather than a solemn constitutional duty. In a July press conference, Lott called the push by some members of Congress for a vote on authorization “a blatant political move that’s not helpful.” He sarcastically elaborated: “Oh, Mr. Saddam Hussein, we’re coming, we’re coming! Get ready! You can expect us, you know, two weeks after election day. And by the way, here’s the way we’re coming. But before we do that we’ll have a huge debate so you’ll know full well exactly what’s going on. Give me a break!”

It’s hard to take such objections seriously. Is Senator Lott really under the impression that declarations of war or use-of-force resolutions incorporate specific dates of attack and include detailed battle plans? Did the 1991 Gulf War Resolution apprise Saddam Hussein of the date air strikes would commence? Did it outline General Schwarzkopf’s plans to send part of the coalition forces into Western Iraq in pincer fashion, to cut off the Iraqi army’s retreat?

The “regime change” operation being contemplated is not some minor, low-intensity conflict. It’s a full-scale invasion, undertaken without a clear casus belli, and one that may result in an even wider and bloodier conflagration throughout the Middle East if Hussein attacks Israel and Israel responds. Our representatives ought not to shirk their duty to deliberate these issues, and then stand and be counted.

Nor should they let the president launch a war based on the flimsiest of legal rationalizations. The proposed war with Iraq may involve up to a quarter of a million American soldiers, each risking the ultimate sacrifice. They deserve a better reason to make that sacrifice than clever lawyering from the White House Counsel’s office. They deserve a vote.

Gene Healy is senior editor at the Cato Institute.