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Hi Holmes,I have no real interest in entering a debate on the Iraq crisis, but would like to bring up a few salient tidbits concerning the constitutionality of the current crisis. No, I'm not a lawyer - I have been however an avid student of military history for 25+ years, and the tug-of-war between the US Congress and the Executive plays a key role in how the US uses its armed forces. Hence my interest. The relevant part of Article I Section 8 (dealing with Congressional powers and responsibilities) states

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To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

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To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

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Nearly every president we've had has offset this article with Article II Section 2 (dealing with Executive powers) which places responsibility for commanding the armed forces and defending the nation in the hands of the president. Article II has been used by every president since before the US Civil War (sometimes justifiably, sometimes less so) - from limited engagements to protect American interests from pirates in the Mediterranean to the Indochina War and Pershing's incursion into Mexico and even the Civil War itself.The most "recent" iteration of this battle is the so-called War Powers Resolution (P.L. 93-148, 87 Stat. 555, 50 U.S.C. Sec. 1541-1548) which sought to redefine presidential authority to use military power overseas. Basically, it was intended to restrict the Executive's ability to engage in protratacted conflict without Congressional approval. HOWEVER, the president STILL retained the right to commit the full power of the US military for up to 60 days all on his own decision. At the end of that time, Congress can order the withdrawl of all troops from combat (like that's gonna happen - can you imagine the public relations nightmare that would cause?). Even so, there is neither Constitutional nor subsequent case law that prevents the president from initiating hostilities. Here's a fascinating discussion of the legal history of the use of presidential power to commit troops overseas.I think in this case the "legality" of the use of force by the Executive depends entirely on whether you are "pro-" or "con-". IOW, you can't say that Bush's plan to invade Iraq is unconstitutional, because it really isn't. It may be a very stupid idea, but it isn't illegal - or at least Congress hasn't bothered to try and hold any president to those restrictions.[This message has been edited by Quetzal, 02-24-2003]

Hi Holmes,It appears we only have one area where we disagree:

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That said, I still disagree with your assessment that it is constitutional, and that any such assessment is based on whether one is pro or con on the war itself.

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Part of this is my fault - I was a bit vague in the way I worded my "pro" or "con" statement. What I meant was that in reference to both the Constitution and the War Powers Act (or Resolution), neither specifically prohibit the president from initiating hostilities or deploying US forces in a conflict. I wasn't necessarily talking about a particular war - any conflict will do. The pro or con refers to which side of the debate (Executive or Congressional powers) you land on. I'm morally certain that there are lawyers out there that have built life-time employment opportunities around this issue.

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I think the case that you and the reference made more clear, is that it is a problem with interpretation of the Constitution, compounded by actual practice of Presidents and Congresses in the past. There has been much debate and inconsitency of application, and no definition (even after the War Powers Act).

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I totally agree with you here - that's sort of what I was trying to bring out.

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Whether I am pro or con on a specific war, I am a firm believer in a strong interpretation of Congress' role in declaring war on other nations. Article 2 simply says the president conducts foreign policy in peace, and "leads" troops in war, but article 1 makes Congress is his master; defining what is war and what is peace.

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In a general sense, this is what the Constitution states. Unfortunately, the history of the US, especially since WWI/II, tends to blur the line about what constitutes "war" or "peace". Which, of course, is the gap into which presidents since have lept with greater or lesser amounts of force: Truman (Korean War), Eisenhower (Cuba, Guatemala) Kennedy/Johnson (Indochina, Dominican Republic), Reagan (Lebanon, Granada, Nicaragua), Bush Sr (Libya, Panama, Liberia, Kuwait - more on this later - Somalia), Clinton (Bosnia, etc), and now Bush Jr. (Afghanistan, Iraq). This of course doesn't even count all the "covert" operations in the interim. Some of these conflicts were "justified" ethically (or have been so justified after they were over), some were less so (or even unethical if you want to subjectively qualify them like that). None - including the Korean War and Indochina - had a pre-existing declaration of war from Congress before the president committed troops. Presidents have basically been using the treaty clauses and "national interest" foreign policy clauses - rightly or wrongly - as justification for what they have done for the last 50 years.

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That's why when daddy Bush attacked Iraq, I did not feel it was unconstitutional, though I was not for the war (Just to make it clear I was for desert shield, just not desert storm).

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Actually, Bush Sr. had very little more justification for Desert Shield/Desert Storm than Bush Jr. has for Iraq. Both are basing their entire premise on the treaty clause, in this case, the UN resolutions - which legally don't even have force of law in the US. One of the reasons the debate over Desert Storm was so acrimonious in Congress was over precisely that point: the "con" side argued that UN resolutions didn't involve treaty obligations forcing us to participate (in spite of Article I Section 8!), whereas the "pro" side argued the reverse.Anyway, the point I'm trying to make is: regardless of how you personally view the coming Iraqi conflict, there doesn't appear to be any justification for labelling it "unconstitutional" - any more than the same could be said for every conflict we've been involved in since WWII. For what it's worth, I concur that an invasion of Iraq is a bad idea - but undoubtedly for reasons different than yours...