THE administration's success in getting Security Council approval to use force against Iraq and its failure thus far to seek congressional approval raise an obvious question: Does the Security Council resolution represent authority to use force under United States domestic law? President Truman made such an argument in justifying the ``police action'' in Korea. Could the same theory support the use of US forces against Iraq?
The argument didn't wash during the Korean war and it won't wash now. The Security Council resolution authorizing use of force against Iraq does just that: It authorizes. As Secretary of State Baker testified Dec. 6, it does not obligate the US to use force after Jan. 15. The distinction between authorization and obligation is as critical historically as it is legally.
The predecessor treaty of the UN Charter - the Covenant of the League of Nations - contained language suggesting that member states might be obliged to use armed force without their specific approval. That possibility contributed directly to the Covenant's rejection by the Senate. The forces led by Sen. Henry Cabot Lodge proposed a reservation that would have required congressional approval for any use of American forces under the League's auspices. But President Wilson opposed the Lodge reservation, and as a result was unable to muster the requisite two-thirds vote for Senate consent to join the League of Nations.
This history was well known to the drafters of the United Nations Charter who met in San Francisco in 1945. Commenting on the proposals that formed the basis of the US negotiating position, Sen. Arthur Vandenberg wrote that ``to his credit, [Secretary of State Cordell Hull] recognizes that the US will never permit itself to be ordered into war against its own consent. He has even gone so far as to suggest that we require this consent to be given by an Act of Congress. This is anything but a wild-eyed internationalist dream of a world State.''
The document that emerged reflected these concerns. As one commentator put it, the battle this time ``was fought on the floor of the San Francisco Conference rather than on the floor of the Senate.'' The product of that battle was a compromise: The Security Council could use forces provided by member states for actions necessary to retain or restore international peace and security - but first, the council was required to initiate special agreements with members, governing the numbers and types of forces provided, and the nature of the assistance to be provided.
The legislation Congress enacted in 1945 to implement the charter required the approval of any special agreement by both houses of Congress. The purpose of this provision was clear: to avoid transferring Congress's war power to the UN. Undersecretary of State Dean Acheson, describing the law's meaning to the House Foreign Affairs Committee, said: ``When you gentlemen have approved'' a special agreement, ``and only then, are we bound to furnish that contingent of troops to the Security Council - and the president is not authorized to furnish any more than you have approved in that agreement.''
For better or worse, neither the US nor any other UN member has concluded such an agreement with the Security Council. Consequently, a Council resolution - particularly one that merely authorizes rather than requires the use of force - cannot expand the president's constitutional power.
The US could have had the right under international law dozens of times since World War II to use force in defense of countries under armed attack if they had requested our assistance. But few would suggest that any such request would have enlarged the president's warmaking power to the point of nullifying Congress's.
True, President Truman claimed power under a Security Council ``recommendation'' to use force to prosecute the Korean war. One precedent, however, does not a constitutional amendment make.
Truman's mistake, indeed, demonstrates why that misguided course should be avoided, not repeated. When public sentiment turned against ``Truman's war'' and troop morale in Korea sagged, the president had no congressional authorization to wave as proof that the commitment was the nation's, not his alone. That, in the end, is the wisdom of the constitutional scheme. Involvement of Congress does not ensure that a warmaking decision will always be wise, but it does enhance the likelihood that all pertinent public viewpoints will be taken into account, and it necessitates building the domestic coalition vital to a sustained, large-scale military operation.
The process of coalition-building is served by Security Council approval on an international level. But only congressional approval can fulfill that role domestically. Few Americans are likely to take comfort knowing that Finland, Zaire, and Colombia have approved risking tens of thousands of American casualties.
Nor should they. What the president constitutionally needs from Congress he cannot get from the UN Security Council.