Some of us have been consistent
I'd like to share one of the many unpublished op-eds I've written in my checkered career as a pundit. I was a strong supporter of President Clinton. But the Iran-Contra scandal had persuaded me that a culture of illegality was developing around the presidency. So I did my best to promote a different set of public expectations during the Clinton years. Sometimes, I managed to persuade a newspaper to publish an essay at a moment of decision, as I did with the Los Angeles Times in 1993; sometimes I swung and missed.
Here is one of the one of the times I whiffed, written right after President Clinton's bombing campaign in Yugoslavia.
Kosovo and the Rule of Law
We have suffered one casualty in the Kosovo war. Though our military emerged unscathed, the rule of law has been blown to pieces. Our own violations of the rule of law have been obscured by the greater lawlessness on the other side. But our casualties have been great, and we should not indulge in mindless triumphalism without surveying the damage.
The first victim has been the War Powers Resolution passed by Congress during the Vietnam War. This statute gave President Clinton sixty days to persuade Congress to authorize hostilities in Kosovo. The House refused to authorize the warthereby undermining its claim to legality on May 25th, the sixtieth day of the bombing campaign.
While Congress did appropriate funds for the conflict, the War Powers Resolution explicitly provides that authorization "shall not be inferred" from the passage of appropriations bills.
Which leads us to our first big question: Is the War Powers Resolution constitutional? Richard Nixon didn't think so, and Congress had to override his veto to pass the act originally. More recent Presidents have also refused to concede that the Resolution can constitutionally restrain their powers as commander in chief. While such claims may have substance in other cases, they border on the frivolous in this one.
Behind the War Powers Resolution lie the provisions of the Constitution itself, which famously gives to Congress, and Congress alone, the power "to declare war." There is no need to play lawyers' games about the meaning of this famous phrase. The President was not defending America against attack, nor was he engaging in a peace-keeping operation, nor was he conducting an "emergency" campaign with strict time limits. He launched an open-ended military adventure, risking an ever-expanding commitment. If this does not amount to "war," what does?
The third casualty of the Kosovo invasion is the United Nations Charter. Aside from cases of self-defense, the Charter requires Security Council authorization for armed intervention after the Security Council determines that "other measures are insufficient." But no such authorization existed in this case.
None of this denies the moral basis of our intervention in Kosovo, nor the seriousness of the crime of genocide, nor the legitimacy of Mr. Milosovic's indictment before the war crimes tribunal. But it does suggest that the war has created a very dangerous precedent, granting future Presidents a virtual carte blanche to bomb their way through the world whenever they think their cause is just.
The present case stands in sharp contrast to our conduct during the Gulf War. At that time, President Bush not only gained Security Council authorization for the war against Iraq, but also gained Congressional authorization for the invasion.
President Bush encountered much derision for his ceaseless invocation of a "new world order." But he was right. And yet we have failed to redesign existing institutions to fit the distinctive challenges of our new world. If the War Powers Act doesn't work, how should it be fixed? If the Security Council doesn't work it, how should it be reorganized? If NATO has now become an offensive alliance, how should it be controlled?
These are the basic questions left in Kosovo's wake. We should take them seriously now, and not wait until some future Presidential experiment with a "no-casualty" war blows up in our face, and a tragedy engulfs us all.
Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of "Before the Next Attack: Protecting Civil Liberties in an Age of Terrorism" (Yale, 2006).