Setting the record straight

by Eugene B. Kogan
The Guardian Online
July 11, 2006

As the US casualty toll in Iraq topped 2,500, the Republicans and Democrats in Congress squared off in an acrimonious debate about which party had the mettle to win that war and the wider struggle against terrorism. Absent from this pre-November elections exercise in partisanship was any effort to hold President Bush accountable for going to war in Iraq on flimsy constitutional grounds. At issue is the misleading claim to be heard frequently in this election season that, as required by the constitution, Congress “authorized” military action against Iraq in October 2002. Earlier this year, Bush accused congressional war critics of changing their opinions in hindsight – in 2002, he claimed, they “voted for war.”

The argument that Congress’s Authorization for Use of Military Force Against Iraq Resolution of October 11 2002, was a “vote for war” reflects the letter of the resolution, but flies in the face of its spirit.

The measure authorized presidential use of force against the “continuing threat posed by Iraq.” On October 8, 2001, on the eve of the vote in Congress, Bush delivered a major address to the nation on the Iraqi threat. He said: “Approving this resolution does not mean that the military action is imminent or unavoidable. This resolution will tell the United Nations, and all nations, that America speaks with one voice.”

This spirit of the resolution was reflected in speeches legislators from both parties made prior to the vote. Senator John Warner, Virginia Republican, said passing the authorization was important to convince Saddam Hussein that American and international resolve is “real, unshakable and enforceable if there is to be a peaceful resolution.” Senator Hillary Rodham Clinton, New York Democrat, said passage of the resolution made diplomatic success at the UN “more likely, and, therefore, war less likely.”

The resolution was not a “war vote” because, at the time, the administration repeatedly claimed that Bush had not made the decision to use force. Rather, Congress voted for diplomacy. The congressional action was designed to strengthen secretary of state Colin Powell’s position as he negotiated passage of the unanimous UN Security Council Resolution 1441, which put world pressure on Iraq to accept international inspections. These inspections, if allowed to run their full course, would have demonstrated Iraq was indeed disarmed.

Unfortunately, despite many public statements to the contrary, Bush was not interested in just ridding Iraq of WMDs. Instead, he focused on changing the Iraqi regime. Already in April 2002, he remarked to a British reporter: “I made up my mind that Saddam needs to go. That’s about all I’m willing to share with you.” That is why Bush did not let the inspections run their course and proceeded with determination in early 2003 to unseat the Iraqi leader.

Congress can authorize hostilities either by use of force resolution or by a declaration of war. Three well-known examples of use of force authorizations are: the Gulf of Tonkin Resolution of August 7, 1964, the Authorization for Use of Military Force Against Iraq Resolution of January 12, 1991, and the Authorization for Use of Military Force of September 14, 2001.

In 1964, after US ships in the Gulf of Tonkin reported they were fired upon by the North Vietnamese, Congress passed the measure, which came to be known as the Gulf of Tonkin Resolution, authorizing President Lyndon Johnson “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” In 1991, Congress authorized President George H. W. Bush to use force in order to enforce UN Security Council Resolution 678 and expel Iraqi forces from Kuwait. And in 2001, in response to 9/11 attacks, Congress authorized President Bush to use force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” In all three cases, the Congress was authorizing the prompt use of US Armed Forces.

This was not the case in October 2002, when, seeking to bolster Powell’s UN diplomacy, Congress issued an anticipatory authorization to use force, relinquishing its constitutional prerogative and responsibility to decide when and if to initiate hostilities against Iraq, and passing the buck to Bush. As a result, the president was left with unprecedented authority not only to wage war – as envisioned by Article 2 of the Constitution – but also to declare hostilities between the United States and Iraq, which, as per Article 1, is Congress’ responsibility. (Mr. Bush signalled the start of hostilities in his evening address to the nation on March 19, 2003.)

In hindsight, Congress committed a colossal blunder in October 2002 by giving Bush such expansive war-making authority. Despite the president’s charged rhetoric about regime change throughout 2002, the Congress allowed itself to be misled by the administration’s frequent assurances that Bush had made no decision to use force. In the end, it was right for Congress to demonstrate the nation’s resolve to disarm Iraq and threaten use of force. It was unnecessary and contrary to constitutional principles, however, to allow Bush to decide when and whether to use force. Unfortunately, Congress rejected the amendment proposed by Sen Carl Levin, Michigan Democrat, to reserve for Congress the final decision on using force if UN diplomacy failed.

As the November election campaigns heat up, it is time for all responsible members of Congress – both Democrats and Republicans – to set the record straight: in October 2002, Congress voted for diplomacy, not war. The Iraq war had just one vote in March 2003 – Bush’s. Members of both parties must also hold the Bush Administration accountable for seeking to work around the Constitution. The Congress can do this by vigorously reasserting its oversight prerogatives over foreign affairs. Hearings on the constitutionality of the Iraq war could prove particularly useful. Members of Congress can also make “war powers” an election campaign topic by pledging to resist the Brobdingnagian swelling of executive power during the Bush Administration’s five years in office.

Setting the record straight about Congress’s role in the run-up to the Iraq war and holding Bush accountable would be good politics as many voters would welcome a limiting of this administration’s unbounded view of executive power. It also has the potential of contributing to sound policy as Congress overcomes its long-lasting crisis of confidence and re-establishes the much-needed balance to the making of US foreign policy.