DECLARATION OF WAR….Michael Smith, the reporter who originally published the Downing Street Memos, has been saying for a while that the real story of the memos is the fact that the U.S. and Britain tried to goad Saddam Hussein into war by stepping up their bombing campaign of Iraq’s no-fly zones nine months before we actually invaded. Barbara O’Brien is outraged:

We’re not just talking about wussy, Frenchified international law here. We’re talking about violation of all-American, red-white-and-blue constitutional law; a bare-assed usurpation of power that the Constitution says belongs to Congress.

Actually, that’s almost certainly not the case. This is similar to what happened in 1964, when Lyndon Johnson used a trumped up incident in the Gulf of Tonkin to get a resolution from Congress giving him the power to do pretty much anything he wanted in Vietnam ? which he did. In 1973, after nine years to cogitate over how this had turned out, Congress passed the War Powers Act, which requires the president to inform Congress within forty-eight hours of military action in a hostile area. Troops must be removed within 60 to 90 days unless Congress approves of the action or declares war.

So the increased bombing was probably quite legal. Patrolling the Iraqi no-fly zones was approved by Congress long ago, and stepping up activity a bit is almost certainly within the president’s commander-in-chief authority. I doubt that any legal scholar would even try to argue otherwise.

What’s more, it’s probably even worse than that. In practice, presidents have long ignored the War Powers Act, and Congress has studiously done nothing about it. As for declaring war, forget it. The United States hasn’t formally declared war on another country since the end of World War II.

If liberals wanted to team up with originalist conservatives on something, I think changing this would be a worthwhile project. It’s certainly the case that the president needs to have the authority to respond quickly to events, and it’s equally the case that Congress doesn’t want to get involved in every minor use of American troops abroad.

But there ought to be a limit. In the case of a major foreign war involving detailed planning and serious numbers of troops, the president ought to be required to get a declaration of war from Congress. Defining “major war” isn’t a trivial task, but it’s not impossible either. Since 1990, the United States has been involved in at least four major wars ? the Gulf War, Kosovo, Afghanistan, and Iraq ? which should have required a declaration of war. None of them got it.

One of the great travesties of the Iraq war is that Congress passed a “use of force” resolution in October 2002 and then passed the buck to the president to decide if and when its conditions for war had been met. Five months later we invaded Iraq without Congress doing anything further aside from approving some budgetary items. This allowed many members of Congress ? mostly Democrats ? to argue disingenuously that, sure, they approved the October resolution, but they didn’t approve of the war as George Bush prosecuted it. They felt the conditions of the resolution hadn’t been satisfied.

Frankly, they shouldn’t be allowed to get away with this. It’s one thing to pass a use of force resolution or to approve funding for a troop buildup. But when it comes time to pull the trigger and go to war, Congress should explicitly approve it without conditions. Based on its own evaluation of current facts on the ground, Congress should either approve military action at that point in time or not. This puts our elected representatives on the record about the act itself, and that’s as it should be. It’s long past time for Congress to stop ducking its constitutional responsibility.

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