Who Needs Permission?

©2002 by Dale Franks

It is, as some wags are fond of observing, better to ask for forgiveness than permission.

That seems to be the logic that some advocates of an attack on Iraq are applying to question of whether the president needs to get congressional approval for it. While agreeing that Congress must authorize American military force in general, they argue that such permission is unnecessary in this specific case, because the president already has permission to launch an attack.

They argue that Congress authorized the initial attack on Iraq, and that the United Nations also passed the appropriate resolutions allowing the use of military force. In the aftermath of his crushing defeat in that conflict, Saddam Hussein agreed to a cease-fire whose maintenance relied upon his compliance with several conditions. Among the conditions with which he was to comply were allowing weapons inspectors into Iraq, and ceasing his research, production, and stockpiling of weapons of mass destruction.

Since that time, Hussein has ceased complying with these and other restrictions. He threw the UN weapons inspectors out of Iraq. The best available evidence is that his research on biological and chemical weapons is proceeding apace. Under such conditions, some argue that, since the cease-fire relied upon Hussein's fulfillment of these conditions, we already have the requisite legal authority the launch an attack any time we wish.

Even if one were to grant arguendo that such a position is legally valid, I suggest that it so totally ignores political reality--as well as good common sense--as to be entirely irrelevant.

The original attack on Iraq took place more than a decade ago. During the debates for congressional approval of that conflict, the reason explicitly offered for military action was the removal of Saddam Hussein's forces from Kuwait, not a crusade against the Iraqi government. I am, therefore, unsure of the validity of the argument that an attack today, with the specific intention of overthrowing the government of Iraq, falls within the scope of that authorization. Moreover, even if it did, I would still argue that the American people's approval is still required before constructing another punitive expeditionary force.

When the Gulf War ended, the president accepted a cease-fire after publicly declaring our war aims to have been met. Our soldiers, sailors, and airmen were, except for a small contingent, subsequently removed from the region. It seems difficult, therefore, to make the argument to the American people that you can go back a decade later, declare two previous governments to be mistaken on whether or not further military action was necessary, and then launch another invasion under the fig leaf that you are covered by a decade-old congressional approval.

By that argument, we could invade North Korea any time they are insufficiently servile, because, after all, we only have a cease-fire with them. Legally we are still at war. I'm pretty certain the American people wouldn't see it that way, however. Similarly, when Germany re-annexed the Saar in 1935, President Roosevelt could have argued that such a gross violation of the Treaty of Versailles required an immediate assault upon Germany, in continuation of the Great War of 1914-1918. It might have been a perfectly legal and legitimate argument, and, in retrospect, perhaps even the wisest policy option, but it would have resulted in Roosevelt occupying the ranks of one-term presidents in 1936.

As it happens, I suspect the American people realize that Iraq needs a government that is less threatening to both the world at large, and its own people. If so, then what's the harm in asking for the support of their elected representatives? Isn't that the way a democratic Republic is supposed to work? I submit that the best course of action is to acquire the support of the American people, as expressed by their elected representatives, before launching an invasion of another sovereign state.

Moreover, I think it's important from a purely military standpoint as well. One thing that is unique about the Western soldier, and the American soldier in particular, is the way they respond to such expressions of public support. American soldiers are deadlier, faster, and possessed of higher morale when they feel they are on a moral crusade to fight evil, and are marching to the constitutional orders of an elected government. I spent much of my adult life as one of those soldiers, and I know important it is to have such a public indication of support from the American people through their government.

Additionally, requiring Congress to vote on the issue has a number of salutary effects. It forces every one of the 537 elected Federal officials to take a public stand on one of the most keenly vital decisions a government can make, that is, the decision to send our sons and daughters off to kill and die in a foreign country, far from home. In the event of great victory, it prevents those who opposed the measure from claiming credit. In the event of disaster, it prevents those who supported it from absolving themselves of responsibility. It gives the electorate a central issue upon which to judge their representatives at election time. (Indeed, candidates for higher political office are even today judged in some measure on how they voted on the question of the Gulf War.) In short, it forces the representatives of the American people to assume their constitutional share of responsibility, and to defend their positions before the electorate. In addition, it demonstrates to both our allies and enemies that the decision to go to war is a decision based on the will of the American people, rather than that of a single man, or a small cabal.

Theoretically, a perfectly legitimate and legal argument can be made that President Bush doesn't need congressional approval for any attack on Iraq. But the arena of public policy--and electoral politics--is not a courtroom in which legalistic arguments are particularly applicable.

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