The end of the Cold War marked a new beginning for the Constitution. Legal checks against presidential war-making had inevitably eroded in a world in which nuclear annihilation was a real possibility. The Soviet missile threat was considered ample justification for giving the President the power to respond instantaneously and without consultation.
Now this imperative has vanished. With the threat of nuclear Armageddon abated, will we reassert the need for checks and balances over the power to make war?
The Gulf War was the first great test, and the Constitution prevailed. Though initially hesitant, when push came to shove, George Bush saw the need to gain the functional equivalent of a declaration of war from Congress. Constitutionally, this was one of America's finest recent moments. Members of Congress rose to the seriousness of the occasion. The debate in Washington reverberated throughout the nation.
Bosnia is the second test. In one respect, it is harder. During the months after Saddam Hussein's invasion of Kuwait, the Bush Administration could hardly deny that it was preparing for war. Masses of U.S. troops and armaments were deploying to the Gulf. But it took constant pressure from the public, as well as the threat of court action, before Bush sought congressional authorization of the use of force against Iraq. The period of military preparation provided space for full constitutional deliberation. In contrast, President Clinton's apparent choice of action in Bosnia, air strikes, can be ordered at a moment's notice.
History teaches that presidents pressed to act expediently seize upon isolated and even imagined events to short-circuit debate and overcome congressional inertia. Unless the Administration acts responsibly, some tragic incident may be used to justify a hurried response, in which war begins without focused and considered congressional approval.
This is, of course, what happened with the Gulf of Tonkin Resolution. We cannot allow it to happen again.
We favor military intervention in Bosnia, but we believe that full and focused congressional deliberation must occur before the first act of war takes place. Without a vote showing our representatives' commitment to military action, public support will quickly evaporate once American aviators are killed or captured. As politicians run for cover, pundits will ask "Why are we in Bosnia?"--precisely the debate that should be happening now, among our elected officials, before our forces are committed.
Our point is not new. It is precisely why the framers explicitly granted the House and Senate the power to declare war in the first place. Presidential "consultation" with a few congressional leaders is not enough to justify a potentially open-ended commitment, even for the most humanitarian of causes. Nor can U.N. Security Council resolutions authorizing the United States to take "all measures necessary" substitute for the functional equivalent of a declaration of war that the Constitution requires.
At stake is something far more important than a sustained military policy in Bosnia. If President Clinton acts responsibly this time, he will build on a crucial constitutional precedent established by his Republican predecessor. President Bush's decision to go to Congress to support the Gulf War will be remembered not as an isolated event of political convenience but as a redefining moment of constitutional statesmanship. A similar decision by President Clinton will begin to build a bipartisan consensus reaffirming a constitutional scheme of checks and balances and shared responsibility in the wake of the Cold War.
A different decision will trap constitutional law in a Cold War time warp. The clear precedent established by President Bush will be eroded by countless apologists as they try to justify the new Administration's unconstitutional actions to the American people. Instead of closing the door on Vietnam through renewed constitutional consensus, we will face another tendentious and endless debate over the limits of presidential power. How many more Cambodias, Grenadas, Panamas can we stomach?
It is up to President Clinton to stop this destructive dynamic before it begins. During the campaign, Clinton promised that he would never take this country to war without a congressional declaration. Unlike other campaign promises that have fallen by the wayside, this is one that his oath of office--and the Constitution--require him to keep.
Bruce Ackerman and Harold Hongju Koh are professors at Yale Law School.