War with Iraq: Who Decides?

February 26, 2002 • Commentary

With even the usually cautious Secretary of State Colin Powell calling for “regime change” in Baghdad, it’s become increasingly clear that Iraq is the next target in the war on terror. According to press accounts, administration officials are drawing up plans for the president’s review, examining whether massive U.S. ground forces will be needed, or if instead the Iraqi National Congress can take the place of the Northern Alliance and do most of the fighting on the ground.

It’s nice that President Bush is looking at all the military options. But where is it written that one man, the president, gets to decide whether the United States goes to war with Iraq? Not in the Constitution, certainly. The Constitution gives the war power to Congress. In this case Congress has not authorized military action against Iraq. Unless and until Congress does, President Bush must not take such action.

The suggestion that the president should have unilateral power to make war was decisively rejected at the Constitutional Convention of 1787. As delegate Elbridge Gerry of Massachusetts put it, he “never expected to hear in a republic a motion to empower the executive alone to make war.” Instead, the Framers agreed that Congress would have the power to declare war.

It’s true that the Constitution makes the president the “Commander in Chief” of the US Army and Navy. But as Alexander Hamilton noted in Federalist No. 69, this does no more than make the president the “first General” of America ‘s armed forces. And generals don’t get to decide which countries we go to war with.

In the case of Iraq, Congress has not passed a formal declaration of war, or authorized any military action whatsoever. Even the sweeping Use of Force resolution approved by Congress three days after the attack on the World Trade Center falls short of authorizing military action against Iraq. That resolution would sanction war with Iraq only if it is determined that the Iraqi government “aided” the commission of the terrorist attacks of Sept. 11. The evidence for that proposition seems far weaker than it did in October, when Czech government officials announced that hijacker Mohammed Atta had met with an Iraqi intelligence agent in Prague last April. Recent reports in the New York Times, the Chicago Tribune, and the Czech press have cast doubts on whether that meeting ever occurred.

Others have pointed to the anthrax mailings that alarmed the public in the months following Sept. 11 as a justification for war with Iraq. But despite intense investigation, the U.S. government has not found any evidence linking Iraq to the anthrax attacks. As Director of Homeland Security Tom Ridge put it recently, “based on the investigative work of many agencies, we ‘re all more inclined to think that the perpetrator is domestic.”

Moreover, even if the government unearths evidence that Saddam Hussein supplied the anthrax, Congress would still need to authorize action against Iraq. By its terms, the current Use of Force resolution only approves military action against those nations, organizations or persons involved in “the terrorist attacks that occurred on September 11, 2001.” Thus, Congress has not yet authorized a military response to any subsequent terrorist attacks.

Nonetheless, anyone following news accounts of the current debate on Iraq could be forgiven for thinking that President Bush has all the authority he needs to wage war on that country. Our elected representatives certainly seem to think so. Senatorial hawks, such as Joseph Lieberman (D.-Conn.), John McCain (R.-Ariz.), and Trent Lott (R.-Miss.) have been reduced to pleading their case via the U.S. mail. In a Dec. 5 letter to the president, Sen. Lieberman, et. al., wrote, “we believe we must directly confront Saddam, sooner rather than later.” Even Sen. Daschle (D.-S. Dak.), initially reluctant to endorse military action, now merely bleats that Congress would like to be “included, consulted, and [wants] to work with the administration” — not that the president lacks the authority unilaterally to wage war on Iraq.

But if the president can take us into war with Iraq without so much as a by‐​your‐​leave to Congress, then Congress’ power to declare war isn’t worth the parchment it’s written on. Congressional hawks and doves alike have the power — and the responsibility — to vote on the question. And for his part, President Bush ought to acknowledge that until Congress votes him the authority to attack Iraq, the Constitution stays his hand.

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