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Guest Commentary June 11, 2002
War Powers and the Campaign Against Terrorism
The Honorable Russ Feingold
Various press reports suggest that President Bush is considering plans for a new military campaign against Iraq sometime next year. If the President does plan to take such action next year, there is still plenty of time for the administration to initiate meaningful consultations with Congress over the necessity and scope of this new military campaign.
Some have also argued, unconvincingly to me, that consultation with Congress would be impossible because a preemptive strike against Iraq would require a high degree of stealth. But the administration has already spoken publicly of the need for regime change in Iraq, and unnamed officials have consistently leaked information to major news sources describing the scope of the proposed operation.
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Moreover, it is now widely assumed that the operation would require a robust ground assault, and that our military build-up in the region would be both deliberate and plainly obvious to any careful observer. So this would not be a purely stealth operation. There would be ample time for congressional consultation as we move forward with fairly obvious military preparations for such a large offensive.
The second argument that is sometimes advanced to support a future military operation in Iraq is that Public Law 102-1, authorizing the use of force in 1991 to respond to Iraq's invasion of Kuwait, still provides ongoing congressional authorization for a major new strike against Iraq. Now, this is a more complex legal argument, but it fails on both legal and public policy grounds. To begin, the congressional authorization for Operation Desert Storm authorizes the President to use military force pursuant to United Nations Security Council Resolution 678. The clear intent of the Security Council in adopting Resolution 678 was to free Kuwait from Iraqi occupation, not to bring about regime change in Iraq. Moreover, United Nations Security Council Resolution 687 implemented a final cease-fire between Iraq, Kuwait and the United Nations Member States that participated in Operation Desert Storm. Although Iraq has certainly failed to comply with the terms of the cease-fire, that failure does not in itself provide automatic authority for the President to launch a significant new military campaign, with the entirely new objective of regime change in Baghdad.
My conclusion, then, is that absent a clear finding that Iraq participated in, aided or otherwise provided support for those who attacked the United States on Sept 11, the Constitution requires the President to seek additional authorization before he can embark on a major new military undertaking in Iraq.
Since it is clear that Iraq has not adequately complied with weapons of mass destruction resolutions adopted by the Security Council, and that the Iraqi leadership continues to commit gross human rights violations against its own people while encouraging terrorist attacks abroad, the consultation and debate over our response to an Iraqi threat may well convince a majority in Congress that the United States must in fact take all necessary steps, including military action, to limit Iraq's capacity to produce weapons of mass destruction. My guess is that such a resolution would succeed, after a good Congressional debate. If this emerges as the shared decision of Congress and the President, the President would act from a strong and constitutionally unified position in launching a new military campaign. Indeed, the Constitution and the American people must demand such a unified response.
Why would I raise these issues today? Why are these war powers questions so important? Why should following the letter of the War Powers Resolution be so important in the midst of this national crisis? I think it should because Congress and the President have a chance to carry out their duties with regard to war and peace in the way the War Powers Resolution dictates, and also in the way the Framers of the Constitution intended.
That kind of cooperation preserves our constitutional structure. It also increases the moral authority of the President to act forcefully. Given the unprecedented nature of the threats confronting us, and the complex environment within which we must respond to those threats, a powerful and constitutionally unified response remains essential. We must also remember that constitutional unity presents both a stronger international image of the United States to our friends and foes, and, at the same time, a more comforting image of U.S. power to many of our close allies in the campaign against terrorism. When we best honor our Constitution and our laws as they relate to the powers of war and peace, we also best prepare our Nation to defend that Constitution and those laws. We owe our Nation no less.
Russ Feingold, a Democrat, is a U.S. Senator from Wisconsin. The above commentary has been adapted from a speech Sen. Feingold delivered on the floor of the Senate, June 10, 2002. To contact him, Click Here.
The above column has been distributed by PoliticsOL.com.
