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Some of us have been consistent—A Commentary by Bruce Ackerman ’67

The following commentary was published in the Los Angeles Times on April 4, 2007.

Some of us have been consistent
By Bruce Ackerman ’67
The caravan passes while the dogs don't bark
By John Yoo ’92

Constitution of convenience
Bill Clinton ignored Congress in the Balkans. George W. Bush ignores Congress in Iraq. Why should we take Republicans and Democrats seriously when they talk about the Constitution? John Yoo and Bruce Ackerman debate the wrangling between Congress and the president over wartime authority.

Today, Yoo and Ackerman discuss the hypocrisy of the left and the right on the issue of war powers. Previously, they debated the ongoing use-of-force resolution and the war powers language of the constitution. Later this week, they'll debate the questionable relevance of declaring war in the 21st century, and the possibility that there may be more important issues here than constitutional language.


Some of us have been consistent
Bruce Ackerman

Dear John:

I'd like to share one of the many unpublished op-eds I've written in my checkered career as a pundit. I was a strong supporter of President Clinton. But the Iran-Contra scandal had persuaded me that a culture of illegality was developing around the presidency. So I did my best to promote a different set of public expectations during the Clinton years. Sometimes, I managed to persuade a newspaper to publish an essay at a moment of decision, as I did with the Los Angeles Times in 1993; sometimes I swung and missed.

Here is one of the one of the times I whiffed, written right after President Clinton's bombing campaign in Yugoslavia.

Kosovo and the Rule of Law

We have suffered one casualty in the Kosovo war. Though our military emerged unscathed, the rule of law has been blown to pieces. Our own violations of the rule of law have been obscured by the greater lawlessness on the other side. But our casualties have been great, and we should not indulge in mindless triumphalism without surveying the damage.

The first victim has been the War Powers Resolution passed by Congress during the Vietnam War. This statute gave President Clinton sixty days to persuade Congress to authorize hostilities in Kosovo. The House refused to authorize the war—thereby undermining its claim to legality on May 25th, the sixtieth day of the bombing campaign.

While Congress did appropriate funds for the conflict, the War Powers Resolution explicitly provides that authorization "shall not be inferred" from the passage of appropriations bills.

Which leads us to our first big question: Is the War Powers Resolution constitutional? Richard Nixon didn't think so, and Congress had to override his veto to pass the act originally. More recent Presidents have also refused to concede that the Resolution can constitutionally restrain their powers as commander in chief. While such claims may have substance in other cases, they border on the frivolous in this one.

Behind the War Powers Resolution lie the provisions of the Constitution itself, which famously gives to Congress, and Congress alone, the power "to declare war." There is no need to play lawyers' games about the meaning of this famous phrase. The President was not defending America against attack, nor was he engaging in a peace-keeping operation, nor was he conducting an "emergency" campaign with strict time limits. He launched an open-ended military adventure, risking an ever-expanding commitment. If this does not amount to "war," what does?

The third casualty of the Kosovo invasion is the United Nations Charter. Aside from cases of self-defense, the Charter requires Security Council authorization for armed intervention after the Security Council determines that "other measures are insufficient." But no such authorization existed in this case.

None of this denies the moral basis of our intervention in Kosovo, nor the seriousness of the crime of genocide, nor the legitimacy of Mr. Milosovic's indictment before the war crimes tribunal. But it does suggest that the war has created a very dangerous precedent, granting future Presidents a virtual carte blanche to bomb their way through the world whenever they think their cause is just.

The present case stands in sharp contrast to our conduct during the Gulf War. At that time, President Bush not only gained Security Council authorization for the war against Iraq, but also gained Congressional authorization for the invasion.

President Bush encountered much derision for his ceaseless invocation of a "new world order." But he was right. And yet we have failed to redesign existing institutions to fit the distinctive challenges of our new world. If the War Powers Act doesn't work, how should it be fixed? If the Security Council doesn't work it, how should it be reorganized? If NATO has now become an offensive alliance, how should it be controlled?

These are the basic questions left in Kosovo's wake. We should take them seriously now, and not wait until some future Presidential experiment with a "no-casualty" war blows up in our face, and a tragedy engulfs us all.

Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of "Before the Next Attack: Protecting Civil Liberties in an Age of Terrorism" (Yale, 2006).


The caravan passes while the dogs don't bark
By John Yoo

Bruce,

In the Sherlock Holmes story, "Silver Blaze," the master detective deduces a murderer's identity because a guard dog failed to bark at the time of the crime. Silence revealed that the killer was the dog's master.

While deafeningly loud today, critics of presidential power failed to make a peep when President Clinton unilaterally waged war in the Balkans. Their silence speaks volumes.

In the 1980s and 1990s, leading scholars and Democratic politicians sharply challenged Presidents Ronald Reagan and George H.W. Bush for wars from Nicaragua to the Persian Gulf. They testified before Congress, hit the airwaves, and even brought a federal lawsuit to block the 1991 Persian Gulf War until it received congressional authorization.

American intervention in the Balkans should have provided an easy target for these critics of presidential power. In 1995, President Clinton dispatched 20,000 troops to Bosnia and then launched a 1999 air war against Serbia to stop ethnic cleansing in Kosovo. Clinton never received any authorization from Congress. In fact, the war against Serbia arguably was the first presidential use of force to violate the War Powers Resolution's 60-day clock on interventions abroad. Congress rejected a proposal to declare war or to authorize the conflict.

But when it came to Clinton, the dog did not bark. Bruce, I am pleased to learn of your effort to publish an op-ed. Unfortunately, yours appears to have been a lonely effort. I do not recall any outpouring of criticism from the editorial pages of our nation's great newspapers. There were no lawsuits by the same academics who sued Reagan and Bush.

Federal legislators who had joined those lawsuits, like Sen. Barbara Mikulski (D-Md.), Rep. Barney Frank (D-Mass.), and Rep John Conyers (D-Ohio), did not file any cases against Clinton or demand his impeachment. Sen. Joe Biden (D-Del.) did not deliver one of his thundering orations against Kosovo. This is the same Biden who voted against Samuel Alito for the Supreme Court, because he would not affirmatively agree with his view that President Bush would need Congress's permission to attack Iran.

Supporters of presidential power have been far more consistent. In 1995, a Republican Congress attempted to repeal the war powers resolution, and in 1999 it fully funded the Kosovo war. To add my own adventures in punditry, I wrote an op-ed in The Wall Street Journal on March 15, 1999, supporting the constitutionality of the Kosovo war.

In 2001 and 2002, the Bush administration went to Congress for approval for the wars in both Afghanistan and Iraq. Critics give it absolutely no credit for ensuring that the wars of this decade were on surer constitutional and political footing that those of the last.

It seems obvious that the academics (you excepted) and congressional Democrats on the ramparts against presidential power today are doing so because they disagree with the Iraq war. They did not raise any constitutional objections when they agreed with Clinton's foreign policy. I doubt this was out of any special love for Clinton, and I like to think it was not out of pure partisan politics.

Instead, congressional Democrats and their academic allies opposed what they saw as Republican presidents' hawkish uses of force to end the Cold War. They wanted a more accommodating approach to the Soviet Union, one that thankfully did not prevail. But when it came to 1990s efforts at nation-building and peacekeeping, in which the United States' national interests were weaker (or in some cases nonexistent) and were submerged within a multinational force, they were only too happy to look the other way.

By failing to bark then, today's critics have lost their bite.

John Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Justice Department from 2001 to 2003, where he worked on constitutional issues involving war, and is the author of "War by Other Means" (2006).