- The Washington Times - Tuesday, April 12, 2011


Although Libya is receding from the front pages and cable television, our involvement is not going to end soon. Attention will migrate to other issues, but the question of public approval will resurface, and with it the question of whether the White House should have sought congressional authorization and should do so even now.

The constitutional requirement seems pretty clear that only Congress has the authority to declare war. No one disputes that the president as commander in chief can respond to an attack or threat of attack without going to Congress, but that is not the situation presented by Libya.

Even after the Sept. 11 attack, President George W. Bush sought and received from Congress authorization for action in both Afghanistan and Iraq, just as his father had done earlier in connection with the first Gulf War, triggered by Saddam Hussein’s invasion of Kuwait.

It is true that the Clinton White House did not seek similar authorization for a no-fly zone in the Balkans in the 1990s, but the Department of Justice went to some pains to construe congressional funding votes as the equivalent, thus preserving the principle.

It does not matter constitutionally that the mission is intended to last days, not weeks, or that NATO is participating or that there are no boots on the ground and low casualties are expected. The first Gulf War did not last long — 100 hours, in fact (though the no-fly zone did last longer) — and did not involve many casualties. (In-theater deaths totaled 382.) Moreover, it was paid for by the coalition. But some of the success of the war can be attributed to the congressional debate and the ensuing public support generated by the vote.

The Senate leadership, under Democratic control, initially did not want to authorize the war. Indeed, the major Senate resolution, the Nunn-Mitchell bill, would have denied the use of force for one year. Sen. Sam Nunn, chairman of the Armed Services Committee, was respected as a supporter of the military as a general matter, and his link with the majority leader was powerful indeed.

In the House of Representatives, the picture looked better, in part because of the support of Rep. Les Aspin, chairman of the Armed Services Committee. But the vote was still close in the House, and the issue cleared the Senate by just two votes. But the debate was inspired, viewed by many as one of the most high-minded debates ever conducted on the Senate floor.

The result was an officially and politically unified country, which then-Defense Secretary Dick Cheney later said was one of the best things that had happened in connection with the war. Why? The reason was that the troops did not have to face a divided public the way troops did during Vietnam and its ugly aftermath. Indeed, erasing that stain was one of the principal objects President Bush sought to achieve through congressional authorization.

The basic constitutional point is political with a capital P. No court is going to intervene unilaterally to block troop movements or deny funding; the issue is the clearest example of the kind of “political question” the Supreme Court routinely ducks. But the court’s abstention is not a cancellation of the independent obligation of the two other branches to uphold the Constitution, as the president’s own oath of office requires. And that obligation is rooted in the democratic need for public approval of so serious a matter, approval that is sought and expressed through elected representatives.

No sustained military effort can last long without public approval, especially if the going gets tough. Even if Libya poses no further problem, the White House will have set back the progress made by two decades of congressional involvement to wipe the slate clean of the Vietnam memory and vindicate the role of Congress so well illustrated by the first Gulf War debate.

C. Boyden Gray has served as White House counsel and as ambassador to the European Union.

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