"The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature."_ James Madison, in a letter to Thomas Jefferson, April 2, 1798
Around Dec. 1, according to the experts, the United States will have in place in Saudi Arabia the military forces and equipment that the Pentagon believes would be required for an attack on Iraq. By then also, if Saddam Hussein has not withdrawn from Kuwait, there will be pressure to act militarily before political support for President Bush's policy frays.
War is on the horizon. Sensing that possibility, senators of both parties told Secretary of State James Baker last week that Congress should be asked first to declare war. Baker refused to give that assurance.
Before this country goes through another traumatic conflict about the war-making power, the president and Secretary Baker should think more carefully about their real interest. For it lies, in this instance, in shared responsibility for any military action: shared with Congress and with the U.N. Security Council.
President Bush has shown skill and patience in obtaining the Security Council's support for successive measures against Iraq. That policy has greatly strengthened the effort to make Saddam Hussein disgorge Kuwait.
To act militarily now without Security Council authorization would be dubious legally. Professor Abram Chayes of the Harvard Law School argues in a paper on the issue that the United States has taken the matter to the council and, since the council has acted, is committed to that forum by the U.N. Charter.
In any event, practical considerations strongly argue for seeking Security Council approval for military action. It would be folly to act without the approval of those who have joined us in the U.N. effort. The first consequence, Chayes notes, "would be to shatter the international consensus that has so far given legitimacy and strength to the enterprise."
If the United States does act through the Security Council, Bush should still go to Congress. The reasons for saying that are found in history and politics.
In 1950 President Truman acted through the U.N. Security Council to resist the North Korean invasion of South Korea. He did not ask Congress for a declaration of war, or even an approving resolution. He was advised that none was needed _ because Congress, in ratifying the U.N. Charter, had forever authorized presidents to take military action under it.
Political disaster resulted. Members of Congress, sharing no responsibility, were free to attack the war as unauthorized when it went badly. They called it "Truman's war." The political instinct, if nothing more, should make George Bush beware of repeating that history.
But what about the element of military surprise? Baker said a commitment to go to Congress first might deprive the president of the ability to act quickly.
Going to Congress would indeed deprive the president of the ability to make a surprise attack. But such an attack might have terrible consequences on the U.S. position in much of the world. Suppose Congress was asked to declare war and said no? The answer is that that risk is the price of living under our constitutional system. And presidents ignore the rules at their peril, as Korea and Vietnam showed.
A war in the gulf would not be easy; it would not be Grenada. On the other hand, the cost of failing to undo Saddam Hussein's aggression would be high _ in the devastation of Kuwait and the precedent for other aggressors. The American people, through their representatives are entitled to weigh the costs: entitled by the Constitution.
New York Times News Service