War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. - book reviews

In his first year in office, President Bill Clinton chose to concentrate his attention and energies on domestic policies. Of his foreign policy, it seems fair to say that he has none. On the major issues that risked substantial military involvement--Bosnia, Somalia, and Haiti--he has made left turns, right turns, and U-turns, disconcerting friends and critics alike. But on one foreign policy issue he has stood firm: In October 1993, Senator Bob Dole (R-Kans.) indicated that he was going to introduce a senatorial amendment that would set conditions for the use of troops in Haiti unless there was a national security emergency. Presumably the resolution would set a precedent for other countries and situations. President Clinton immediately responded. He would strongly oppose, he said, any congressional effort to limit his ability to make foreign policy or to exercise his authority as commander in chief The president's legal advisers added that such an amendment would be unconstitutional because it would restrict "the right of the president to make foreign policy." Dole rapidly backtracked. He did not intend, he said, to offend either the Constitution or the president, and he acknowledged that if he were president his stance would be very much like Clinton's. When a version of the Dole amendment was put to a senatorial vote, it was defeated 81 to 19. Congress clearly sided with the president.

That incident had the life-span of a day lily--very short. But it was only one in a long span of far more important incidents that reveal strong tensions between American presidents and the Congress in foreign-policy decisions that threaten or involve the use of military power. However, according to John Hart Ely, an expert on the constitutional questions, Robert Dole was right initially and he, the president, and Congress subsequently took a misguided path. Stated briefly, our Constitution invests Congress with certain foreign-policy powers, specifically that of declaring war. The president can engage the armed forces in war without such prior authorization only to "repel sudden attacks." Once war is authorized by Congress, the armed forces are quite properly under control of the commander in chief. Some qualifications are called for here, but they do not change this major assertion: It is the right of Congress, not the president, to declare war. This is the gravamen of the case that Ely presents in this short, technical, incisive, and readable book.

So accustomed have most of us become to believe that the right and obligation to shape foreign policy are lodged firmly in the executive branch that we tend to believe that strong congressional efforts to have a voice are intrusive. Yet Article 1, Section 8 of the Constitution is unequivocal. It states that Congress shall have the power to declare war. And, in Ely's summary of the related powers : "To Congress also are granted the powers to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the armed forces, to provide for calling forth, organizing, and disciplining the military, to grant letters of marque and reprisal, and to make rules concerning captures."

Like other articles of the Constitution this was carefully considered by those who composed it. Madison, to offer but one commentary, wrote: "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."

If this is so clear, how has our understanding of it become so muddled? How have ordinary citizens and legal experts come to believe that the authority to declare war does, and properly should, reside in the executive office? Why, for example, was Clinton's allocation of troops to Somalia--where military engagement loomed as a real possibility--not more publicly questioned?

Modem critics have tended to dismiss or obscure this clear separation of powers by arguing that modem wars are seldom "declared," that such a restriction on the president's powers is obsolescent in today's world, and that, in any case, actual practice has effectively amended the "war clause."

Ely will have none of this. With clearly stated reasons he dispenses with these arguments. He then examines the byplay between the executive and the legislative branches during the Vietnam era, the secret war" in Laos and Cambodia, and President George Bush's successful effort to gain congressional approval for Desert Storm. Each of these yields "constitutional lessons" that his subtitle promises. After all these years it is still distressing to see pinned down, like a specimen butterfly, the Congress of the Vietnam period, to contemplate the pusillanimous behavior of those many who authorized each phase of the war as it developed, but with a "studied ambiguity" that allowed them subsequently to disclaim responsibility for their decisions. The "secret wars," on the other hand, did an end-run around Congress, thus precluding the possibility that it could exercise its proper function. Different from both of these cases is that of the Persian Gulf War, for which President Bush skillfully obtained the necessary congressional authority.

Ely does not intend his analysis to be simply an academic exercise, however useful that in itself might be. His examination of the War Powers Resolution (or Act, as it is commonly known) leads to his suggestions for overhauling it so that, prodded by the judiciary if need be, Congress could not wriggle or slither out of its responsibility.

It may sound forbidding if I say that this brief book is composed of 138 pages of text and 100 of notes. But I hasten to add that the notes contain some of Ely's pithiest comments, some of the most serious and simultaneously amusing quotations, and even a bit of Doonesbury. This is scholarship with a difference. It is not to be expected that Ely will have swept the field clear of all opposition, but now that this book exists, no one should engage in discussions about war and U.S. responsibility or the War Powers Act without having consulted it.

COPYRIGHT 1994 Commonweal Foundation
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