Iraq, Congress and the Constitution.(COMMENTARY)

Article excerpt


Eyebrows were raised over reports the White House Counsel's office had advised President Bush the Constitution did not require him to obtain approval from Congress before using force to bring about a regime change in Iraq.

But the president's lawyers were right. Perhaps more importantly, the president was also right when he decided to seek a formal resolution of approval.

Article II, Section 3, of the Constitution vests in the president both the power and the duty to "take care that the laws be faithfully executed," and Article VI affirms that treaties are part of the "supreme law of the land."

When Congress overwhelmingly approved the 1945 U.N. Participation Act (UNPA), the unanimous House report explained that the ratification of the U.N. Charter "resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder." Quoting the unanimous Senate report urging charter ratification, the House report added that the use of U.S. armed forces to enforce the charter "would not be an act of war but would be international action for the preservation of the peace," and thus "the provisions of the charter do not affect the exclusive power of the Congress to declare war."

A UNPA amendment proposed by Sen. Burton Wheeler requiring congressional authorization before U.S. troops could be sent into combat to enforce the charter received fewer than 10 votes.

The primary purpose of the United Nations was set forth clearly in Article 1(1) of its charter: "to take effective collective measures for the prevention and removal of threats to the peace." The Security Council was given "primary responsibility" for maintaining peace, but Sen. Arthur Vandenberg - who helped negotiate the charter - asserted "there would have been no charter" had the right of individual and collective self-defense not been expressly preserved in Article 51.

Vandenberg told the Senate that if the Security Council proved unable to act - for example, because of a veto - individual members could still confront lawbreakers, saving the U.N. "from final impotence."

Surely no serious person doubts that Saddam remains a threat to the peace. His prior acts of international aggression have resulted in the death or serious injury of perhaps a million people, and he has repeatedly used illegal weapons of mass destruction (WMD) against both his neighbors and his own people.

The reason the Security Council conditioned the 1991 cease-fire upon the destruction of all Iraqi WMD programs was because they knew Saddam would remain a threat to the peace if his claws were not pulled. To emphasize the importance of this requirement, after the cease-fire the Security Council repeatedly emphasized that Resolution 678, which authorized the use of force "to restore peace and security to the area," remains in force.

Without American leadership, few world leaders have the stomach to risk upsetting Saddam Hussein or other international terrorists he has been supporting.

The behavior of Congress since Vietnam (where, by passing a law in May 1973 making it illegal for the president to use military force to resist communist aggression, Congress virtually snatched defeat from the jaws of victory and set the stage for the slaughter of millions and the enslavement of tens of millions in Stalinist tyranny) provides little assurance that America will not bail once again if the going gets rough.

As a constitutional matter, the president in my view does not need formal authorization from Congress. But few understand these esoteric constitutional issues, and by bypassing Congress the president would have risked distracting the nation from the solemn business at hand with a procedural quarrel in which he would be widely perceived as a lawbreaker. …