A ‘Splendid Little War’ Collides With the War Powers Act

Can the president make war on another country, even against the will of Congress? May 25 is the last day the bombing of Yugoslavia has even a tinge of legal authority under the War Powers Act. The next “collateral damage” caused by the bombing campaign may be to the laws and Constitution of the United States.

The constitutional stew comes from a poisonous mix of presidential arrogance and congressional partisanship. President Bill Clinton launched the war without seeking congressional support. It was to be the North Atlantic Treaty Organization’s splendid little war, wrapped up a few days after the bombs began falling. When Yugoslav President Slobodan Milosevic responded not by surrendering but by intensifying the ethnic cleansing campaign in Kosovo, Clinton continued the bombing. As the debacle in Kosovo grew, GOP leaders, still embittered by the impeachment follies and led by conservative stalwart, House Whip Tom DeLay (R-Texas), rushed to brand this “Clinton’s war.”

This produced one of the more shameless days of congressional posturing. On April 28, a majority of the House of Representatives voted against a declaration of war; against withdrawal from the war; for requiring congressional approval prior to the dispatch of any ground forces; and, in a 213-213 vote, against a resolution in support of the air war. House leaders then proceeded to work toward giving the Pentagon twice as much money as it had asked for to pay for the war. The Senate effort was bipartisan but not much better: Leaders of both parties agreed to a token debate before tabling a resolution that would authorize ground forces. So the bombing proceeds not only without the sanction of Congress but against its expressed will.

Under the Constitution, Congress is given the power to declare war. Over the years, particularly during the Cold War, presidents often dispatched troops without prior authority. In the wake of Vietnam, Congress sought to rein in executive war-making by passing the War Powers Act in 1973.

Ironically, the resolution essentially delegates to the president the power to make war for a limited period of time. It requires the president to report within 48 hours after introducing U.S. forces into hostilities. If Congress does not declare war or otherwise explicitly authorize its continuation, the president has 60 days “to terminate any use” of U.S. forces, with a 30-day extension, if necessary, to extricate them safely. Under the resolution, the voting of funds for the troops does not constitute congressional sanction for the war.

Clinton’s 60 days run out on May 25. Led by Rep. Tom Campbell (R-San Jose), a former Stanford law professor, a bipartisan gaggle of 17 legislators, ranging from Rep. Dennis J. Kucinich (D-Ohio) on the left to GOP heavy Bob Barr (R-Ga.) on the right, have filed suit in federal court seeking a declaration that the continuation of the bombing is a violation of the Constitution and laws of the United States.

Since President Richard M. Nixon tried to veto the War Powers Act, presidents have scorned it as an unconstitutional infringement of executive power. But, nonetheless, every president has issued reports on the dispatch of troops “consistent with” (not pursuant to) the War Powers Act. Most recent conflicts--the invasions of Grenada and Panama, Clinton’s strikes against the Sudan and Afghanistan--have been over long before the 60 days ran out. In the few cases where forces stayed longer, the president either had congressional approval--President George Bush in the Gulf War--or worked out a compromise with Congress that provided some color of authority--the disastrous agreement with President Ronald Reagan to keep troops in Lebanon. There is no prior instance where a conflict continued after Congress explicitly voted against it.

From Vietnam onward, the courts have been reluctant to get involved in war-powers disputes. They’ve offered up more excuses than a sassy teenager has to avoid chores. The courts want the president and Congress, the political branches, to work this out on their own.

Before Desert Storm, former Rep. Ronald V. Dellums and 52 other legislators asked the court to enjoin Bush from attacking Iraq without first gaining congressional authorization. District Court Judge Harold H. Greene held that the legislators had standing, that the case could be decided. But he found the case wasn’t “ripe” because a majority of the Congress had not indicated they thought a declaration was necessary. With Yugoslavia, however, Congress has spoken, voting down a declaration of war and against authorizing the air war.

With the president and Congress at loggerheads and bombs falling, the court will again be tempted to duck. But the Constitution would be better served if the court issued the declaratory judgment that continued bombing is a clear violation of the laws and the Constitution.

The founders gave Congress the power to declare war for good reason. They wanted the decision to move from peace to war, to put lives and fortune at risk, to be made carefully, with deliberation not with dispatch. James Wilson, with James Madison the most preeminent constitutional thinker of the founders, wrote that the constitutional provision “will not hurry us into war. It is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.”

The founders were skeptical of the tendency of kings to make war for their own purposes. As Madison wrote to Thomas Jefferson, “The Constitution supposes what the history of all governments demonstrates, that the Ex. [Executive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care vested the question of war in the Legisl.”

Few wars better illustrate the founders’ wisdom than the attack on Yugoslavia. If there had been a full debate in Congress before the war, it is hard to imagine that the gulf between its moral purpose of saving the Kosovars and its utterly divorced means of bombing Yugoslavia would have survived public airing. The doubts of the military and the intelligence community about the air strategy would have been exposed. The nation would have had to be committed before the pilots were.

But the White House feared Congress would not want to get involved. Yet, it is hard to imagine that either choice--a national commitment to intervene or a congressional demand that the president stick to diplomacy and sanctions short of war--would have ended up worse than a war started almost casually in the mistaken belief it would be over in days.

If the court were to call the president and Congress to account, it would end the partisan posturing. Congress would have to decide whether to authorize the bombing or not, and know that its decision would have consequences.

More important, the Constitution would be strengthened. Future presidents would be less likely to ignore Congress before launching missiles. They might even be encouraged to seek a debate and declaration ahead of time. If their greater accountability made easy recourse to cruise-missile diplomacy less likely, the nation would surely be well served.*