MISSOURI COMMNETARY: THE CONSTITUTION AND CLINTON'S WAR

"I never expected to hear in a republic a motion to empower the Executive alone to declare war." -- Elbridge Gerry, Constitutional Convention, Philadelphia, Aug. 17, 1787

Elbridge Gerry would be shocked by Clinton's war in Kosovo. He would have been just as shocked by the unilateral military actions of Presidents Reagan and Bush. Indeed, he would have been shocked when, in 1973, Congress enacted legislation formally giving away its power to declare war. The United States had just rid itself of the Vietnam War, the most unpopular war in our history, and the American people were ready to limit sharply the president's unilateral war-making powers.

The new statute, entitles the War Powers Act, was, according to its policy section, created "to fulfill the intent of the framers of the Constitution of the United States and to ensure that the collective judgment of both the Congress and the president will apply to the introduction of United States armed forces into hostilities." The act, as finally voted on, did no such thing. Instead, it obliged the president to come to Congress only after American forces have been committed to battle. Under the act, up to 90 days of unilateral presidential war making is permitted before any specific, congressional consent is required. It thus gives legal, albeit unconstitutional, sanction to executive wars in the manner of kingly powers.

The effort to recapture the war powers of Congress by legislation was inspired by our tragic experience in Indochina. Presidential decisions shaped the course of that war, and an indifferent Congress imposed little or no restraint.

Let's take a look at the Constitution.

Article I authorizes Congress, among other things, to "provide for the common defense," to "declare war," to "make rules for the government and regulation of land and naval forces," to "raise armies and navies," to "make all appropriations" and to make "all laws which shall be necessary and proper" for carrying out all of these enumerated powers.

In Article II, the president is given power to appoint ambassadors, and he is denominated as commander in chief.

One need not be a constitutional historian to conclude that the Founding Fathers decided that the business of war was too serious a matter to be left to one person. Having experienced enough of George III, they wanted not more unilateral war making.

Although the Fathers could not be so omniscient as to provide exact answers to every question that might arise regarding the use of American armed forces, they were clear that the power to make war was shared between Congress and the president. The constitutional provisions were to provide a framework within which Congress and the president could cooperate in the protection of the nation from external threat.

Throughout our history, several presidents have committed American forces without a declaration of war. For example, American has attacked pirates in Tripoli and has chased Pancho Villa in Mexico on unilateral presidential authority. Congress sometimes sulked about presidential adventures but, often as not, was happy to have been spared the political burden of ticklish decision making about war.

President Truman marched us into Korea under a United Nations resolution. Congress later did considerable second guessing about this but never felt the itch either to declare war or stop it.

We inched into Vietnam under Truman, Eisenhower and Kennedy and then jumped in full force under Johnson with the Gulf of Tonkin Resolution. That resolution sounded a lot less alarming and drastic than a declaration of war, but it had the same legal effect. No doubt about it, Congress had legalized Johnson's war.

During the interminable agony of Vietnam, senators and representatives first in twos and threes, and later by the score, swore that "We should never get fooled again." Somehow, there had to be a framework that put Congress in a position to exercise its constitutional obligation on the dispatching of American troops into hostilities.

At the suggestion of U.S. Sen. Frank Church, D-Idaho, the de facto chairman of the Senate Foreign Relations Committee, Sen. Jacob Javits, R-N.Y., and I began crafting a War Powers Act that would restore a constitutionally proper shared balance between Congress and the president.

The Senate passed such an act. Under the Senate version, the president, as commander in chief, had the unilateral right of self-defense if we are attacked. Under some old Supreme Court decisions, the president had the unilateral right to rescue endangered American national abroad. In all other military adventures, the president would be obliged to come to Congress for authority to commit our armed forces. The House, for reasons never fully fathomable, emasculated the Senate bill by granting the president 90 days of unilateral war making. The House version, sadly, became law.

President Reagan refused to comply with the procedures of the flawed act when the sent armed forces to Grenada, Libya, Lebanon and the Persian Gulf.

President Bush said he didn't "have to get permission from some old goat in the United States Congress to kick Saddam out of Kuwait." Congress, in a 52-47 Senate vote and a 250-183 House vote, approved of Bush's decision to intervene against Iraq, but Bush asserted he would have gone ahead even if Congress had voted it down. Talk about the imperial presidency.

President Clinton, during the 1992 campaign, gave lip-service approval of the War Powers Act. But once he took office he decided that all war matters were his alone. He ignored Congress when he sent 20,000 American soldiers to Bosnia and when he used cruise missiles to bomb terrorists in Afghanistan and Sudan. In Kosovo, Clinton has not invoked the procedures of the act.

I have come to the conclusion that most members of Congress really do not want to be in on the decision-making process as to when, how and where we go to war. Congress doesn't want to have its fingerprints on risky matters pertaining to putting our armed forces into hostilities. When it comes to the risk of body bags, there are not too many profiles in courage on Capitol Hill. Congress would prefer the right o retrospective criticism if Clinton's war goes sour.

One thing is certain: The War Powers Act is deader than dead.

~Tom Eagleton of St. Louis is a former U.S. senator from Missouri.