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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU OPINION * OPINION * OPINION * OPINION * OPINION * OPINION Politics in Wonderland By Ira Glasser With an invasion of Haiti growing more imminent each day, we are witnessing what has become a pre-engagement ritual: the bipartisan refusal by all three branches of government to comply with the Constitition. Without exception, every President in recent memory has argued that as Commander-in-Chief, the President has the constitutional authority to initiate war without the prior approval of Congress. The President and other executive branch officials do this by explaining away the relevant provision of the Constitution. Article I, Section 8 says: "The Congress shall have the declare war." To the average citizen whose sons and daughters might be killed or maimed in war, and whose other interests might also be gravely affected, the meaning of that provision might appear clear. But to the President and his executive branch appointees who do not wish to have their decisions subjected to the democratic consent of those most deeply affected by them, the Constitution's command is much more ambiguous. Thus, when we committed troops to Somalia, we were told that we weren't committing them to battle, but only to "humanitarian aid." When we committed troops to Panama and Grenada, we were told it was to respond to an "emergency." Even when we invaded Iraq, which was authorized by Congress prior to the invasion, President Bush claimed he was submitting the question to Congress only as a courtesy, not because the Constitution required it. And now President Clinton seeks to escape the Constitution's requirement by claiming that his impending invasion of Haiti is not a war at all, but a "police action." The Korean War, also initiated without the prior approval of Congress, was similarly called a "police action," but those Americans who lost life or limb there would not likely have appreciated the distinction. While each president's claim of authority to initiate war remains consistent, regardless of party, the congressional view is curiously variable. "The President has no authority, acting alone, to commit the United States to war", said Sen. George Mitchell, the Democratic Senate leader, when President Bush wanted to invade Iraq in 1990. But in 1994, with a Democratic president at the helm, Sen. Mitchell's view of the Constitution has changed: while the President should seek congressional approval, according to Mitchell, "it's not legal or necessary." The reverse metamorphosis is reflected in statements by Sen. Robert Dole, the Republican leader, now and then. Citizens will be excused for concluding that partisan loyalty rather than fidelity to the Constitution was decisive in their respective positions. Thus if it is true, as some say, that the President has illegitimately grabbed constitutional powers reserved exclusively to Congress, Congress itself, as a whole, has been a willing accomplice, and has consistently abdicated its constitutional responsibility to make the decision whether to go to war. And what about the judicial branch, designed to protect our constitutional rights against the other two branches of government? By and large, the courts have stood aside, either by finding various doctrinal reasons to avoid deciding the issue, or in some cases by ruling that the war powers clause of the Constitution does not mean what it says. Thus, in the matter of how exactly a democratic society should decide in any given instance whether to use military force as an instrument of foreign policy, what we have is the deliberate bipartisan refusal by all three branches of government to obey the Constitution. The result is that democracy itself is short-circuited, and the consent of the governed ignored. Is this too strong a statement? I do not think so. Obviously, no constitutional provision is so clear and embracing that its meaning in a given situation is not open to argument or interpretation. The founders of this country meant to establish general principles when they wrote the Constitution; they did not mean to anticipate every circumstance or construct a detailed set of regulations that would decide every question in advance. But whatever the war powers clause may mean in any particular circumstance, its basic principle is clear: this nation should not commit the blood of its young and the treasure of its citizens merely upon the say-so of any one person, including the President. To the contrary, so grave a decision must not be taken except with the consent of the governed, and in a representative democracy, the instrument of that consent is Congress. Calling war a "police action" doesn't change that. Calling something "an emergency" that has in fact been planned, publicly discussed and openly threatened for months doesn't change that. And pretending that our war is a war initiated by the United Nations doesn't change that either. Let's face it: it's Politics in Wonderland. As Humpty Dumpty told a bewildered Alice: "When I use a word it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master -- that's all." Exactly. Has Humpty Dumpty taken over all three branches of government? ---------------------------------------------------------------- Ira Glasser is the Executive Director of the American Civil Liberties Union. [September 15, 1994] ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher:// | American Civil Liberties Union National Office | | "Eternal vigilance is the price of liberty"


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