It Was Not a Declaration of War

ONE of the most complex legal issues to arise during last week's historic debate over the potential use of force in the Middle East is whether Congress intended its action to be considered the equivalent of a Declaration of War. While the debate produced confusing and contrasting perspectives on this question, it is important to understand that passage of the resolution authorizing the use of force does not constitute a Declaration of War in a legal or historical sense.

Modern world politics are founded upon a conception of international society analogous to the laws and customs on coercion in domestic societies - that resort to violence in international affairs must be regarded either as lawful police action or a crime. In other words, resort to armed force in international society is legitimate only if it is used on behalf or in service to the fundamental principles and purposes undergirding international law.

The United Nations General Assembly has defined aggression as ``a crime against the peace, for which there is responsibility under international law.''

The concept of international law enforcement through collective security is embodied in the United Nations Charter and is an integral part of international law, as well as - through the Supremacy Clause in Article VI of our own Constitution as applied to treaties - the law of the United States.

In other words, a Congressional Declaration of War in this circumstance would be contrary to the purposes of the United Nations. It might also frustrate our diplomacy by making it appear that it is the United States versus Iraq rather than the world community versus Saddam. In addition, it might needlessly prolong a potentially bloody and unpredictable conflict with Iraq, because of the legal and political complications associated with the problem of war termination.

In some ways, the psychological dimension of a declaration of war is as important as the legal. Psychologically, a declaration of war implies that what is at issue in our confrontation with Iraq is traditional war and the instincts of patriotic nationalism on both sides. Rather than war, what is at issue from the American perspective is response to international criminality, using modern instruments of war. Sufficient grounds for cessation of hostilities, if they commence, would, as a consequence, be the removal of Iraqi troops from Kuwait and the possible holding of Saddam and his henchmen accountable before an international bar of justice.

The articulation of more limited intentions is of crucial importance because it makes clear to the Iraqi people that America would define victory as Iraqi acquiescence to the constraints of international law, without Iraq having to face either the humiliation of surrender or the prospect of societal annihilation.

Operating under Security Council Resolutions, America therefore has an obligation to walk the extraordinarily difficult line of applying all force appropriate to protect our own forces but not so much as to wreak havoc on that part of Iraqi society which is unrelated to Saddam's aggression or war-making capacities.

The action Congress took authorizing the administration discretion in complying with the UN resolutions neither transfers extraordinary powers to the Executive or affirms conflict exists or is inevitable.

Fully recognizing the paradox, the majority of Congress concluded that the prospect of a peaceful resolution of the Kuwaiti confrontation was enhanced by preparation for war and the avoidance of political equivocation between the first and second estates. The action by Congress reflects the will and judgment of the American people that a police action war with Iraq is legal and just, although undesired.

While consideration of a Declaration of War was clearly inappropriate under current circumstances, Congress had a constitutional duty to address the use of force issue. Not only does the Constitution vest the power to declare war in the Congress, but it further contemplates that a status or condition fairly described by armed hostility between the United States and another state - whether declared or undeclared - must be legislatively authorized.

The framers of the Constitution did not entrust the war power to Congress to protect congressmen; they did so to protect the American public. They believed that the gravest of all governmental decisions - the making of war - should not be the responsibility of a single individual. It should be taken by a democratically elected, geographically and socially balanced legislature after careful debate and deliberation.

It would either be tyrannical or irresponsible for a Congress of, by, and for the people to shirk its responsiblity and transfer the power to make war ot the presidency. In America, after all, process is our most important product.

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