CHENEY: Senator, I would argue, as has every president to my knowledge, certainly in modern times, that the president, as commander in chief, under Title II [sic], Section 2 of the US Constitution, has the authority to commit US forces.
Despite Kennedy’s disbelieving challenge to Cheney in that hearing room, despite Dellums’s lawsuit, Congress as an institution—and congressional leadership in particular—didn’t exactly get up on their hind legs and make a full-on fight with the president. The truth was, it looked like the leaders stepped back and prayed the crisis would resolve itself before they had to show up again for work in January 1991. By then, they hoped, Saddam would have summoned the sense to get out of Kuwait before the shooting started, relieving them of the need to be counted for war or against it.
With Congress in a state of strategic deferral, the White House’s real political energy was spent convincing the rest of the world. The Bush administration was busy shepherding a new UN resolution giving Saddam a drop-dead date for leaving Kuwait: January 15, 1991. If he was still in Kuwait on that day, according to UN resolution 678, the US-led military coalition was free to use “all necessary means” to remove him.
It was only once that resolution was passed—once that international path to war had been cleared—that the president decided he ought to at least make some gesture in the direction of caring about Congress. They’d be back in session—a new Congress convened—before the January 15 deadline, after all. He couldn’t tell the people that the United Nations had more sway over our military than did the elected representatives of the American people. “The Security Council,” Bush wrote, “had voted to go to war … but the carefully negotiated UN vote also called attention to whether, having asked the United Nations, we were obliged to seek similar authority from Congress. Once again we were faced with weighing the president’s inherent power to use force against the political benefits of explicit support from Congress.”
The political benefits! Had President Ronald Reagan believed that the decision to wage war (or not to) resided solely in the executive branch, and not in Congress—that the legislature’s role was just to cheer a president on and give a little political cover—he would never have waged his Contra adventure in secret. He did do it in secret—in violation of federal statute—and he got caught for it. To defend Reagan once he got caught, his administration cooked up the ad hoc, backfilling defense that no crime had been committed, that the legal constraint the president had taken such great secretive pains to elude didn’t really exist. Congress, their argument went, actually had no power over war making—pro or con; the president could wage any war he wanted, on his own terms. It was an absurd argument. But it spewed enough of a smokescreen to save Reagan from impeachment, and after he was gone, it was convenient enough to successor presidents that it survived. It didn’t have to—but it did.
And by 1990, it was this bizarre political inheritance that allowed old small-c conservative patrician George H. W. Bush—a man with no Fum-Poo flair at all, a man who grew up in a town where the country-club locker room was filled with men railing against the unconstitutional presidential overreach of Franklin Delano Roosevelt—to claim for himself and all presidents “inherent powers to use force” for which Congress’s explicit support was useful only as a “political benefit.” We had come a long way in a short time, and the strain showed on George H. W. Bush.
Ignoring the founders’ loud and explicit warning that we should not allow one person to unilaterally take us to war has been demonstrably bad for this country. Turns out it’s not so great for that one person, either. For all his hard-line “I’m the commander in chief” talk, Bush was tied in knots about the whole war powers business. A bracing little tour of President George H. W. Bush’s private diaries and letters from his months of captivity in the Should-I-Make-War-on-Saddam hall of mirrors is instructive:
I feel tension in the stomach and in the neck. I feel great pressure.… I worry, worry, worry about eroded support.… Some wanted me to deliver fireside chats to explain things, as Franklin Roosevelt had done. I am not good at that.… I think this week has been the most unpleasant, or tension filled of the Presidency.… If you want a friend in Washington, get a dog.… Nobody is particularly happy with me.… But some way I have got to convey to the American people that I will try my hardest, and [am] doing my best.
The president was aware of the political risks in going to war without some show of congressional support. His best ally in the Senate, Bob Dole, had publicly said that this was “make or break time” for the Bush presidency. But Dole hadn’t exactly been clamoring for Congress to take any of the burden of decision on themselves. “If we in Congress want to participate, then we owe our boys and the president support for policy.” If we want to participate? There’s a choice? Bush hoped not. “Is there a way for the president to fulfill all his responsibilities to Congress by saying, a few days before any fighting was to begin, ‘hostilities are imminent—period!’ ” Bush asked his White House counsel. “Is there something short of ‘declaring’ war that satisfies Congress yet doesn’t risk tying the president’s hands?… Please hand carry your reply to Brent for ‘Eyes Only’ transmission to me.”
Bush did take the time to write a personal and private letter asking for advice from Sen. Bob Byrd, a Democrat, but a fair one, Bush thought, and a stickler for constitutional correctness. When Byrd told the president he was obligated to ask for a declaration of war, Bush waved it off. The president was in a muddle. He was concerned enough about Congress to ask the counsel of one of the wisest solons of the Senate, then miffed by the idea that the Senate had something to say.
Bush wrote about his war decision in his diary over and over again, in tones halfway between confession and pep talk. “I’m getting older but does that make it easier to send someone’s son to die, or does that make it more difficult? All I know is that it’s right … and I know what will happen if we let the 15th slide by and we look wimpish, or unwilling to do what we must … and I keep thinking of the … Marines and the Army guys—young, young, so very young.… They say I don’t concentrate on domestic affairs, and I expect that charge is true: but how can you when you hold the life and death of a lot of young troops in your hand?”
As Bush psyched himself up for what he had decided was his grave and lone responsibility, he talked himself well beyond a president’s normal resentment of congressional meddling and toward a real emotional rage that the Congress might insinuate themselves into this at all. This was getting personal. Even years later, he could still work himself into a state remembering it. “They had none of the responsibility or the worries that go with a decision to take military action yet they felt free to attack us,” Bush wrote in his 1998 book, A World Transformed. “They did not have to contend with the morale of the forces, the difficulty of holding the coalition together, or the fact that time was running out. Above all, they had no responsibility for the lives of our soldiers, sailors, and airmen.”
No responsibility? Only a president had that responsibility? To the president’s mind, a war was not the country’s or even the government’s, but the president’s alone. And woe be unto that lonely man.
It is my decision. My decision to send these kids into battle, my decision that may affect the lives of innocence [sic]. It is my decision to step back and let sanctions work. Or to move forward. And in my view, help establish the New World Order. It is my decision to stand, and take the heat, or fall back and wait and hope. It is my decision that affects [the] husband, the girlfriend, or the wife that is waiting, or the mother that writes, “Take care of my son.” And yet I know what I have to do.
I have never felt a day like this in my life. I am very tired. I didn’t sleep well and this troubles me because I must go to the nation at 9 o’clock. My lower gut hurts, nothing like when I had the bleeding ulcer. But I am aware of it, and I take a couple of Mylantas. I come over to the house about twenty of four to lie down. Before I make my calls at 5, the old shoulder
s tighten up. My mind is a thousand miles away. I simply can’t sleep. I think of what other Presidents went through. The agony of war.
In mid-December, at the orders of the president and his secretary of defense, the United States military was conducting an air- and sea-lift operation larger and more costly than the one at the height of the Vietnam War. Nearly two hundred freighters were hauling men and matériel—trucks, jeeps, tanks, and bombs—into the Gulf in preparation for something big. And that was when Federal District Judge Harold H. Greene weighed in with his ruling in the case of Dellums v. Bush.
The judge’s decision is worth framing:
Article I, Section 8, Clause 11, of the Constitution grants to the Congress the power “To declare War.” To the extent that this unambiguous direction requires construction or explanation, it is provided by the framers’ comments that they felt it would be unwise to entrust the momentous power to involve the nation in a war to the President alone; Jefferson explained that he desired “an effectual check to the Dog of war”; James Wilson similarly expressed the expectation that this system would guard against hostilities being initiated by a single man. Even Abraham Lincoln, while a Congressman, said more than half a century later that “no one man should hold the power of bringing” war upon us.
The judge, in his decision, waved off as spurious Bush administration arguments that it was for the president to decide whether or not a military action constituted war.
If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an “interpretation” would evade the plain language of the Constitution, and it cannot stand.…
Here [in the Persian Gulf], the forces involved are of such magnitude and significance as to present no serious claim that war would not ensue if they became engaged in combat, and it is therefore clear that congressional approval is required if Congress desires to become involved.…
The Court has no hesitation in concluding that an offensive entry into Iraq by several hundred thousand United States servicemen under the conditions described above could be described as a “war” within the meaning of Article I, Section 8, Clause 11, of the Constitution. To put it another way: the Court is not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority “to declare war.”
But Judge Greene also refused to issue an injunction preventing the president from taking the country to war in the Persian Gulf. “The majority [of Congress] is the only one competent to declare war, and therefore also the one with the ability to seek an order from the courts to prevent anyone else, i.e., the Executive, from in effect declaring war. In short, unless the Congress as a whole, or by a majority, is heard from, the controversy here cannot be deemed ripe.”
In other words, it was up to Congress to get off its ass and do its job. The court wasn’t going to do it for them. A minority of a few dozen members of Congress bringing a lawsuit made for a splendid legal argument. But to stop a war (or start one) Congress needed to act as a whole, as an institution, by majority vote.
When Congress reconvened the first week in January, the two leaders in the Senate, Democrat George Mitchell and Republican Bob Dole, agreed that it would be best if they didn’t bring up a war resolution until January 23, eight days after the deadline for Saddam to leave—likely after the president had given the orders for our Air Force and Navy to begin bombing Iraq. There were angry floor statements from a handful of senators, such as Tom Harkin, who cautioned patience and sanctions. “The best time to debate this issue is before this country commits itself to war and not after,” said Harkin. “Our constitutional obligations are here and now.”
But this was one hot potato that congressional leaders clearly did not wish to handle. One Republican senator summed it up nicely on that opening day of the 102nd Congress: “A lot of people here want it both ways. If it works, they want to be with the president. If not, they want to be against him.”
The president might have seized the reins from Congress on war making, but Congress wasn’t exactly fighting to seize them back. The country was split and every member of the House and Senate knew it. Polling data showed that about half the country was for a full-out military invasion in the Persian Gulf, and about half against it. Closer inspection showed ambivalence on either side of the ledger. A woman whose husband had already been deployed told a newspaper reporter in the first week of January 1991 that she was torn. “I’m not sure we have negotiated enough,” she said. “I support our troops, and I certainly support my husband. And I keep to myself in my letters and our few phone calls what I really feel.”
“I want to be a good citizen and support our country,” a cleaning lady in Mississippi told the same reporter. “But I keep waiting for somebody to explain to me why we are over there and whether it’s worth it. I still don’t know, and it’s been going on for months. I’m afraid we might be headed for another Vietnam.”
Anecdotal evidence like that, and a mountain of polling data, made clear that calculating the politics of the Gulf War was as complicated as calculating its merits. But that made things simple for much of Congress; they were hoping to stay on the sidelines and pick a side after the fact. They were willing to cede the decision to Bush, and let him take the heat (or the greater share of the glory)—willing, in effect, to allow the country to once again drift into war without the constitutionally required debate and a formal national declaration. “Congress in recent decades has avoided its responsibility,” the Pulitzer Prize–winning columnist and longtime student of the Constitution Anthony Lewis wrote the day after Mitchell and Dole kicked the can down the road. “We have come very far toward the monarchical Presidency that Hamilton and Madison and the others feared. If a President on his own can take us into a war in the gulf, George III will be entitled to smile—wherever he is. The United States has lasted this long, free and strong, by respecting the constraints of law—of the Constitution. For President Bush to disrespect them now in the name of world order would be a disaster, for him and for us.”
Finally, at the eleventh hour, when war was all but inevitable anyway, the president and the Congress did the right thing in spite of themselves. Against the advice of Secretary of Defense Dick Cheney, who insisted that asking for any kind of congressional approval for a war in the Persian Gulf would set a “dangerous precedent” and “diminish the power” of the presidency, Bush made the ask … sort of. He didn’t want a formal declaration of war, but a congressional vote supporting the UN resolution to use “all means necessary” to remove Saddam from Kuwait—in other words, to support his war. “Such action would send the clearest possible message to Saddam Hussein that he must withdraw without condition or delay from Kuwait,” Bush wrote in his letter to Congress on January 8, 1991. “I am determined to do whatever is necessary to protect America’s security. I ask Congress to join with me in this task. I can think of no better way than for Congress to express its support for the President at this critical time.”
So in the few days before the UN deadline for Saddam to leave Kuwait (or else), Congress got down to business and formally considered the wisdom of unleashing a massive half-a-million-Americans-on-the-ground war in the Persian Gulf. With the president deriding their work as nothing more than a decision about whether or not to express support for him, our elected representatives nevertheless fought out the decision to go to war on the floor of the House and the floor of the Senate, in the wells of democracy, before the shooting started. And it wasn’t all just preening and posturing and pandering. It was real, and heartfelt, and raucous, and public.
There is broad agreement in the Senate that Iraq must fully and unconditionally withdraw its forces from Kuwait. The issue is how best to achieve that goal.
Without a credible military threat, our alternative is sanctio
ns followed by nothing at all. This is why I cannot vote for sanctions alone. This is why I cannot vote to deprive the president of the credible threat of force.
Saddam Hussein … seeks control over one of the world’s vital resources, and he ultimately seeks to make himself the unchallenged anti-Western dictator of the Middle East.
We are not in an international crisis. Nothing large happened. A nasty little country invaded a littler, but just as nasty, country.
Solidarity, we need it now, not division, but solidarity.
I reject the argument that says Congress must support the president, right or wrong. We have our own responsibility to do what is right, and I believe that war today is wrong. At this historic moment, it may well be that only Congress can stop this senseless march toward war.
I think it’s time for Congress to help rather than hinder the president. I think it’s time for the Congress to join with the president and get behind him and our young men and women over there sitting in the sand and show that we’re willing to back the use of force.
If we do nothing, and Saddam pays no price for swallowing up the country of Kuwait, destroying people’s property, torturing, raping, and killing innocent men and women and children, we are as guilty as he is.
War is about fire and steel and people dying. If the sons and daughters of all of us, of the president, the vice president, the Cabinet were all over there in the Persian Gulf right now, right up on the front line and were going to be part of that first assault wave that would go on into Kuwait, I think we’d be taking more time. I think we’d be working harder on the sanctions policy. I think we’d be trying to squeeze Saddam Hussein in every other way that we could, short of a shooting war.
Drift: The Unmooring of American Military Power Page 15