April 18, 2006

WHEN MINDLESS SNARK SUBSTITUTES FOR THOUGHT: Jesse Walker quotes something I wrote in 1999 about how "wars initiated essentially on presidential whim" would have horrified the Framers, and it's supposed, I guess, to indicate some change in my views.

Er, except that war on Al Qaeda, and the invasion of Iraq, were explicitly authorized by Congress, in declarations of war and everything. After, you know, an actual attack on the United States.

A pretty lame effort on Jesse's part -- really, a cheap shot -- but typical of what passes for antiwar analysis, even among libertarians today, I'm afraid. As are the comments that follow. Jeez.

UPDATE: Kjell Hagen emails:

I understand the Kosovo military action in 1999 was not so popular in the US, I donīt know what you thought about it. However, those 35 days of bombing from the air saved a people, the Kosovo Albanians. Kosovo would have been Darfur or Rwanda without this military action. Although it is a UN-chaos today, it is a lot better than the alternative. USA and NATO did the right thing, and the Kosovo Albanians are very grateful for it.

And I supported that bombing, though I had doubts as to whether it would work. (It was Wesley Clark, not me, who called it illegal.) I did -- and do -- favor getting Congressional declarations of war whenever possible, though one reason I have done so, that it would discourage sniping later in the conflict by forcing people to go on the record, has been only imperfectly borne out by recent events.

I love the term "UN-chaos," too, as its meaning is, alas, immediately clear. Meanwhile, reader B. de Galvez emails:

Speaking of old quotes, it never hurts to be reminded of the railing about Clinton's "genocide", claiming sanctions killed 1.5 million Iraqis (500,000 to 700,000 of them little tykes).

Indymedia produced this video at the time of the 2000 Democratic Convention. The Iraq section starts at about 36:36.


As so many repeatedly have asked, why aren't these people rejoicing over the countless lives that have been spared by Saddam's involuntary retirement?

The video wouldn't play for me, but the point certainly holds.

MORE: Walker responds that I have so changed my views. Er, no. He also says that the Congressional declarations were not declarations of war. Actually, they were. But even if one were to accept what I think is his argument -- that they were authorizations to use military force against a named enemy, but not technically declarations of war -- they surely undercut any claim that we went to war on President Bush's "whim."

I'm not really sure what point Walker was trying to make in his post anyway. That -- as some of his commenters libellously suggest -- I'm on the White House payroll? (Er, no again). That I hated Clinton back then, but love Bush now? No, in fact I co-wrote a book generally regarded as a Clinton defense, though I was pretty disappointed in him by the end. But I didn't let my disappointment with Clinton turn into a hatred of all his policies, the way that some people seem to have let their dislike of Bush turn into a belief that all of Bush's policies -- and anyone who defends any of them -- have become evil. Indeed, regular readers of InstaPundit will see that my references to Bush and the Republicans are not exactly uniformly positive. (And I have managed to praise Clinton when I thought he deserved it, too.) One would think that libertarians, as Walker claims to be, would be less anxious to divide the world up into teams, but that seems not to be the case, alas.

And, yes, rather than responding to this I probably should have read the post below again, and taken it to heart. . . .

MORE STILL: A reader emails that the Iraq and Al Qaeda declarations were "informal" rather than "formal" declarations of war. This distinction, which has to do with the (fictional) notion that we don't go to war since the U.N. Charter was adopted, isn't really relevant for U.S. constitutional law. If you have an identified enemy, a casus belli, and an authorization for the President to go after them with the military, you've got a declaration of war. The Hamdan opinion responds to the claim of no formal declaration in essentially these terms. (And, lest I be accused of changing my views on this topic, I remember having this very discussion with John Hart Ely back when we were both visiting professors at U.Va, over ten years ago. As I recall, he agreed.)

Since people seem interested, click "read more" for an excerpt from an article by Ely with which I was, and am, in substantial agreement. It's "KUWAIT, THE CONSTITUTION, AND THE COURTS: TWO CHEERS FOR JUDGE GREENE," 8 Constitutional Commentary 1, 1991. But here's the gist:

Judge Harold Greene's decision in Dellums et al. v. Bush was plainly right in its central proposition, that (except in the event of a "sudden attack" upon the United States) the Constitution places unambiguously in Congress the authority to decide whether the nation goes to war. (Once war is congressionally authorized--note that there has never been a requirement that such authorization actually be labeled a "declaration of war," only that it be clear--authority to manage it then passes to the President in his role as "Commander in Chief.")

(emphasis added) Click "read more" for a couple of other bits, but it should be clear that Walker is without basis saying that the notion that the Iraq and Al Qaeda resolutions were declarations of war is bizarre. (Downside to my position: I agree with Joe Biden -- upside, I agree not only with Ely but with Eugene Volokh. I hope Walker's writings on pirate radio are better researched.)

Some comments here and here.

More from Ely:


Decisive legislative action risks constituent support, though, and thus whenever there is any plausible way to avoid decision, Congress tends to take it. The most egregious example of this may be the very subject under discussion, war-making. The Constitution tried to make that, too, a decision respecting which Congress's assent would be inescapably required. The system held pretty well for a century and a half but broke down in 1950, over Korea--our clearest example of a war not authorized in advance by Congress--and it has stayed pretty much broken down ever since.

Our lengthy, bloody war in Vietnam was, or at least so I have argued, sufficiently authorized by Congress, most notably in the Tonkin Gulf Resolution, but invariably with a maximum of obfuscation, disclaimers that the authorization being enacted certainly shouldn't be taken as indicating that those voting for it actually wanted the war to proceed. [FN15] And respecting our various smaller wars since--Grenada, Tripoli, Panama, the naval war with Iran, and so forth--the president's confident assertions that such decisions are his alone, and the majority of Congress's unwillingness to take any action stronger than knitting their brows and waiting to see how the war in question played politically, both increased apace. For wars can go badly or wars can go well, and actually going on the record at the beginning (or for that matter any time before the end) can be risky. It is far safer to wait for the final curtain to decide whether you should applaud, or instead protest that you never really approved of the venture.

The New York Times' editorial of December 16, 1990 summarized *5 the administration's overall argument thus: "Congress knows how to say no, officials argue, and if it fails to do so, why that's tantamount to a declaration of war." [FN16] We have seen, however, that this never was, and today it assuredly is not, a symmetrical situation. The fact that a majority of Congress can take action to stop a war if it can organize itself to do so is not remotely a functional substitute for the constitutional requirement that wars are not to be begun without Congress's affirmative approval.

Actually the framers didn't want it to be symmetrical--but the asymmetry they sought was the exact opposite of that created by the combination of the administration's assertions that it doesn't need authorization, and Judge Greene's decision. George Mason said he was "for clogging rather than facilitating war; but for facilitating peace," and Oliver Ellsworth defended the requirement of congressional authorization by saying that "[i]t should be more easy to get out of war, than into it." [FN17] Unfortunately Greene's "ripeness" ruling--that it should take one or another sort of "declaration of peace," some affirmative action by a majority of Congress to keep the country out of war (indeed, to insist that the president follow the prescribed procedures)--puts the shoe on the other foot.
(End Ely excerpt)

This has been my opinion all along. If you get beyond the equivalent of raids on pirate bases -- a category in which I'd put, say, Clinton's cruise missile attacks on Osama -- or repelling an imminent attack, you pretty quickly get into the realm in which you should have Congressional approval. That goes double -- or quadruple -- if the President is trying to assert additional legal powers on the basis that a state of war exists.

None of this, however, has much to do with the situation today, where the Bush Administration was careful to get explicit Congressional declarations, which is why Walker's effort to suggest otherwise fails.