The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

eliminate the "middle option" from our foreign policy retinue; it will simply place it in the public sphere where all major policy decisions of a democratic society belong.

The legislature, and the people of this country, have a right, if not an obligation, to be skeptical when the President takes it upon himself to commit the United States to war or any other military action. While he may ultimately have good cause to do so, recent history--the Vietnam War and the Iran-Contra affair alone--invites us to exercise significant caution before supporting such a commitment. If the President cleared his action with Congress before carrying it out, he could avoid the rancorous and disruptive reaction that could otherwise ensue. By overcoming internal division in advance, the President can more effectively focus attention on the military objective at hand.

Advance congressional approval also legitimizes the policy to the outside world once an operation has actually begun. Policy makers have always striven for a bipartisan foreign policy. It allows us to present to allies and adversaries alike a unified front fully committed to achieving its goals; and it would further undermine any attempts by the adversary to try to defeat the President through the Congress.

Finally, advance approval will help to prevent the political backlash from Congress that invariably follows upon a foreign policy failure. Indeed Congress's investigation into the Iran-Contra affair focused extensively on the President's failure to keep Congress informed about the Iran operations, as was required under the intelligence oversight procedures in effect. (The President's violation of the funding restrictions on the Nicaragua operation was a wholly separate problem.) Had the appropriate Members of Congress been so informed, they would have had far less to complain about once the ensuing operation was exposed. While Congress may still have voiced strong objection to the intent and effect of the Iran operation, the President would have at least satisfied all of the existing legal requirements. Of course, we believe that the existing legal requirements are deficient, and should be further tightened, because they allow the President to proceed with a military operation even in the face of congressional opposition.

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