The President as Commander in Chief

By Terry, James P. | Ave Maria Law Review, Spring 2009 | Go to article overview

The President as Commander in Chief


Terry, James P., Ave Maria Law Review


2. George Walker Bush

When George Walker Bush was elected by the slightest of electoral college margins over Democrat Al Gore in 2000, many nevertheless believed he would be seen as one of our stronger Presidents, largely because of the strength of the national security team he assembled. (403) The Department of Defense was headed by Donald Rumsfeld, a no-nonsense former Secretary who had been a scion in industry. (404) His Vice President, Richard Cheney, had previously served in Congress, as Chief of Staff to Gerald Ford, and as a strong Secretary of Defense under George H.W. Bush, before serving as the Chairman and CEO of Haliburton. (405) General Colin Powell had previously served as Deputy National Security Advisor, National Security Advisor, and as a highly respected Chairman of the Joint Chiefs of Staff under George H.W. Bush. (406) Powell's appointment as Secretary of State was viewed by many as the crown jewel in the cabinet. (407) The National Security Advisor, Condoleezza Rice, although serving in her first senior national security post, was widely viewed as one of the preeminent Russian scholars in U.S. academia, having most recently served as Stanford's Provost. (408)

The determination by President George W. Bush to enter Iraq and remove the regime of Saddam Hussein from power in early 2003 followed twelve years of Iraqi violations of U.N. Security Council Resolutions following Operation Desert Storm. (409) Prior to the decision by the United States and its coalition partners to intervene in Iraq with military force in 2003, Saddam Hussein had done everything possible to avoid compliance with the will of the international community. Of the twenty-six demands made by the Security Council since 1991, Iraq had complied with only three. (410) Equally significant, the regime's repression of the Iraqi people had continued.

The October 16, 2002, joint resolution of Congress authorizing the use of all means, including force, to bring Iraq into compliance was merely one of a series of actions by Congress to address the noncompliance by Baghdad of its international obligations. (411) In 1998, for example, Congress passed a similar resolution at the request of President Clinton. (412) That resolution declared that "Iraq's continuing weapons of mass destruction programs threatened vital United States interests and international peace and security," declared Iraq to be in material breach of its international obligations, and urged the President "to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations." (413)

These congressional and U.N. Security Council Resolutions were not the only outcry for change. In the Iraq Liberation Act passed in 1998, U.S. lawmakers expressed the sense of Congress that "[i]t should be the policy of the United States to support efforts to remove ... from power [the Iraqi regime], and promote the emergence of a democratic government to replace that regime." (414) The reasons for this strong congressional reaction to the Hussein regime rested not solely on Iraqi defiance of U.N. resolutions, but also on Saddam Hussein's repression of the Iraqi people, his support for international terrorism, his refusal to account for Gulf War prisoners, his refusal to return stolen property to Kuwait following the 1990-1991 conflict, and the Baathist regime's efforts to circumvent economic sanctions. (415)

The U.S. intervention with its coalition partners in Iraq in March 2003 must be viewed as a significant historical precedent in the relationship of a major power to the Security Council. Previously in 1999 in Kosovo, the United States and a coalition largely made up of NATO partners intervened to rescue and protect the threatened Albanian population from Serb aggression without specific Security Council approval. (416) The military action in Kosovo could arguably be justified as a humanitarian intervention created by the inhuman treatment of the Albanians by Milosevic. …

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