Congress Should Retake Right to Declare War

One of the great half-truths about American foreign policy is that Congress interferes too much with the ability of the executive branch to do as it sees fit overseas.

Listen to the complaints of the Clinton administration, or any of its recent predecessors, both Republican and Democratic, and you’ll hear this refrain. Congress is exceeding its constitutional role by improperly usurping the president’s authority in foreign policy, they say.

Well, don’t take the whining too seriously. For, as we’re now seeing in Kosovo, when it comes to the single most momentous aspect of foreign policy, the decision to send American troops into combat, the reverse is true: The last few presidents have wielded power that goes far beyond what they were supposed to have under our political system.

The Constitution clearly gives Congress, not the president, the authority to declare war. And yet in the last few decades, American presidents have sent troops into extended combat in many places--Korea, Vietnam, the Persian Gulf and Yugoslavia, not to mention many other brief side-ventures--without asking Congress for a declaration of war.

Now, Rep. Tom Campbell (R-San Jose) is trying to reverse this progressive drift away from our constitutional framework. Campbell, who is opposed to American military action in Yugoslavia, has introduced legislation requiring that Congress declare war on Yugoslavia by May 4 or, alternatively, that American troops be withdrawn from the conflict.

“There’s a reason the Constitution requires that Congress declare war,” Campbell told The Times last week. “If we go to war, it’s with a lot of popular support.”

Many people, including this writer, would disagree with Campbell’s views on Kosovo itself: It’s hard to accept the view that America and its allies should have stood by and done nothing.

Yet Campbell is right about the Constitution and about Congress’ role. The crisis in Kosovo shows how far we’ve come from the original intent of the Constitution. Indeed, Kosovo serves as a classic example of why a declaration of war was required under our system and would be beneficial today.

Let’s look at the arguments that have been made against requiring a declaration of war, and see how they fit the current crisis.

First, above all, the claim has been made that modern-day presidents need to be able to respond quickly to a military attack. To take the most extreme example, if missiles were already launched toward the United States, no one would demand that the president wait for a quorum call on Capitol Hill.

This argument might conceivably have fit the situation in the Korean War, the first conflict in which a declaration of war was not obtained. It certainly doesn’t apply to the current action against Yugoslavia, where America and its allies are not responding to an attack.

Second, those who oppose congressional declarations say it’s sometimes hard to define exactly what constitutes a “war.” Were the fleeting American military actions in Grenada or Haiti big enough or long enough to amount to war?

That’s a nice debating point. But the answer, for Yugoslavia, comes from the memorable words of Supreme Court Justice Potter Stewart, who once said of pornography: “I can’t define it, but I know it when I see it.” Current American action against Yugoslavia is war by any reasonable interpretation of the word.

Now, let’s examine what the benefits might have been if a declaration of war had been obtained in advance of action against Yugoslavia.

Certainly, it would have been hard to get and might have taken some time. But in the process, President Slobodan Milosevic would have been put on notice that if he continued his brutal policies in Kosovo, he would confront the full military power of the United States.

The issue of whether to use ground forces would not have been left hanging. Once Congress had made the far-reaching decision to go to war, the president would automatically have had the authority to send in troops as well as missiles and bombers.

Indeed, if President Clinton had asked Congress to declare war beforehand, his administration might have thought through its strategy more clearly. It would have been forced to come up with an answer, in advance, to the question of what it would do if bombing alone doesn’t work.

Finally, with a declaration of war, the issue of public support for U.S. action against Yugoslavia would have been settled once and for all. And maybe, facing the possibility of all-out war rather than gradual escalation of airstrikes, Milosevic would have backed down before the war ever started.

Perhaps Campbell’s is a lost cause. Presidents have been going to war on their own authority for decades. Members of Congress have rarely protested, and it would be hard now to restore the constitutional framework to what it should be.

But the next time you hear someone complain about congressional intrusions upon the president’s authority over foreign policy, try this: Laugh.

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Jim Mann’s column appears in this space every Wednesday.