Drift: The Unmooring of American Military Power (19 page)

There were some members of Congress on both sides of the aisle who were squarely with Bush. They were with him on the old Reagan line that open public debate was a dangerous thing. Republican Senate leader Bob Dole asked, “How do we have open debate without sending the wrong signal to Saddam?” Republican congressman Henry Hyde went so far as to say that “Congress are supposed to be leaders. We should be carrying the [president’s] message to the people.”

But the point was, the debate in Congress had already begun. The call-up of the Reserves had assured it. There was going to be a public airing of the merits of this war, no matter what the president said.

On November 20, a few days after Bush’s “I’m the commander in chief” performance, a group of forty-five House members led by Rep. Ron Dellums gathered the Capitol Hill press corps to announce that they had filed a lawsuit asking the federal district court in Washington, DC, to demand that the president send to Congress a formal declaration of war to be debated and voted on
before
American troops were sent into battle. “There is no necessity for quick action here,” said one congressman. “We are not being invaded. There is no reason at all why the Constitution in this case should not be honored. And that’s what this lawsuit is all about.”

This was a more aggressive challenge to the president than that initial warning letter from the Speaker of the House three weeks earlier, before 200,000 more Americans had been pointed east and told to pack. Dellums and company were essentially asking a judge to tie the president’s hands unless and until he got Congress on board. “Some people have said, ‘Well, don’t you believe that this would inconvenience the president?’ ” Dellums said. “The Constitution is designed to inconvenience one person from taking us to war. War is a very solemn and sobering and extraordinary act and it should not be granted to one person.”

“Some people are saying you’re not inconveniencing [the president],” one reporter observed. “You’re undermining his ability to conduct an effective policy in the Persian Gulf.”

“To do anything other than what we’re suggesting here is to undermine the Constitution of the United States,” Dellums countered. “This is not the president’s sole prerogative.”

In the Senate, the Armed Services Committee, chaired by Georgia Democrat Sam Nunn, convened hearings on military readiness and capability in the Gulf, but the hearings quickly turned to questions about the advisability of and the need for a shooting war in Kuwait. And not just whether we ought to fight a war like that, but who would get to say so. Nunn even called as
a witness the sharp-eyed Vietnam vet and author James Webb, not long removed from a tour as Reagan’s secretary of the Navy, who argued that Bush needed to get a declaration of war from Congress. Further, if Bush really meant to start a war of this size, his actions ought to live up to the magnitude of that decision. Stop-lossing active-duty troops was one thing, calling up the Guard and Reserves was all well and good, but to knit this into American life even further, the president needed to reinstitute the draft. The entire country needed to feel it, not just the military.

Up till that point, all the president’s steps toward war had been taken unilaterally. But the sheer magnitude of his actions, the number of military personnel he’d had to involve, demanded attention and challenge. The Bush White House seemed to understand that, but to resent and resist it too. “We were confident that the Constitution was on our side when it came to the president’s discretion to use force if necessary,” wrote Brent Scowcroft. “If we sought congressional involvement, it would not be authority we were after, but support.”

Actually, again, not to insist, but the Constitution “with studied care vested the question of war in the Legislature.” But by 1990 the executive branch wasn’t operating as if this was true anymore. Sure, a president going to war would be wise to engage with Congress on the issue. But that engagement was not determinative of whether we would in fact have that war—it was akin to lining up support from some foreign, sometimes-friendly ally: friends with political benefits. Better to have them on board than not, but if they didn’t come along, no biggie.

Not only
didn’t
the “question of war” vest in the Legislature anymore—it
shouldn’t
, either. The loudest voice in the Bush White House in favor of steamrolling the national legislature
was the secretary of defense, Dick Cheney. Cheney had cut his bureaucratic teeth (and exceedingly sharp they were) as White House chief of staff during the Gerald Ford presidency, back when Congress was first wielding its War Powers Resolution (stupid regulations!) and making unprecedented and unwelcome trips to the White House to stop Ford from taking the country into another war in Vietnam.

“Cheney and I dealt with this congressional backlash in the Ford White House,” Cheney’s mentor, Donald Rumsfeld, wrote in his autobiography. “In the early days of the Ford Administration, Bryce Harlow, the savvy White House Liaison to Congress, former Eisenhower aide, and friend, told me—and I am paraphrasing from memory: ‘The steady pressure by Congress and the courts is to reduce executive authority. It is inexorable, inevitable, and historical. Resolve that when you leave the White House, leave it with the same authorities it had when you came. Do not contribute to the erosion of presidential power on your watch.’ Harlow’s words left an impression on me, and, I suspect, on Cheney.”

Even before the congressional hearings on Saddam and Kuwait had commenced in November 1990, Secretary of Defense Cheney had shipped out to the Sunday talk-show circuit to sound the old Reagan line about the “risky proposition” of leaving national security decisions in the shaky hands of 535 members of Congress. “I take you back to September 1941, when World War II had been under way for two years,” Cheney said on
Meet the Press
. “Hitler had taken Austria, Czechoslovakia, Poland, Norway, Denmark, the Netherlands, Belgium, France, and was halfway to Moscow. And the Congress, in that setting, two months before Pearl Harbor, agreed to extend the draft for twelve more months … by just one vote.” That Saddam Hussein’s misbegotten—and already-stopped-dead-in-its-tracks—adventure in the Middle East was
in no way comparable to Hitler’s blitzkrieg through Europe was beside Cheney’s point. Cheney’s point was that Congress was sure to get out that white paint … and run with the antelopes. Wimps.

Secretary Cheney was no more conciliatory when he went to Capitol Hill to testify at Nunn’s hearings; this was not a man coming hat in hand to ask his former colleagues for permission for anything. In an exchange with Sen. Edward Kennedy, Cheney laid down a stunning new marker for executive power.

Despite Kennedy’s disbelieving challenge to Cheney in that hearing room, despite Dellums’s lawsuit, Congress as an institution—and congressional leadership in particular—didn’t exactly get up on their hind legs and make a full-on fight with the president. The truth was, it looked like the leaders stepped back and prayed the crisis would resolve itself before they had to show up again for work in January 1991. By then, they hoped, Saddam would have summoned the sense to get out of Kuwait before the shooting started, relieving them of the need to be counted for war or against it.

With Congress in a state of strategic deferral, the White House’s real political energy was spent convincing the rest of the world. The Bush administration was busy shepherding a new UN resolution giving Saddam a drop-dead date for leaving Kuwait: January 15, 1991. If he was still in Kuwait on that day, according to UN resolution 678, the US-led military coalition was free to use “all necessary means” to remove him.

It was only once that resolution was passed—once that international path to war had been cleared—that the president decided he ought to at least make some gesture in the direction of caring about Congress. They’d be back in session—a new Congress convened—before the January 15 deadline, after all.
He couldn’t tell the people that the United Nations had more sway over our military than did the elected representatives of the American people. “The Security Council,” Bush wrote, “had voted to go to war … but the carefully negotiated UN vote also called attention to whether, having asked the United Nations, we were obliged to seek similar authority from Congress. Once again we were faced with weighing the president’s inherent power to use force against the political benefits of explicit support from Congress.”

The political benefits! Had President Ronald Reagan believed that the decision to wage war (or not to) resided solely in the executive branch, and not in Congress—that the legislature’s role was just to cheer a president on and give a little political cover—he would never have waged his Contra adventure in secret. He did do it in secret—in violation of federal statute—and he got caught for it. To defend Reagan once he got caught, his administration cooked up the ad hoc, backfilling defense that no crime had been committed, that the legal constraint the president had taken such great secretive pains to elude didn’t really exist. Congress, their argument went, actually had no power over war making—pro or con; the president could wage any war he wanted, on his own terms. It was an absurd argument. But it spewed enough of a smokescreen to save Reagan from impeachment, and after he was gone, it was convenient enough to successor presidents that it survived. It didn’t have to—but it did.

And by 1990, it was this bizarre political inheritance that allowed old small
-c
conservative patrician George H. W. Bush—a man with no Fum-Poo flair at all, a man who grew up in a town where the country-club locker room was filled with men railing against the unconstitutional presidential overreach of Franklin Delano Roosevelt—to claim for himself and all presidents “inherent powers to use force” for which Congress’s explicit support
was useful only as a “political benefit.” We had come a long way in a short time, and the strain showed on George H. W. Bush.

Ignoring the founders’ loud and explicit warning that we should not allow one person to unilaterally take us to war has been demonstrably bad for this country. Turns out it’s not so great for that one person, either. For all his hard-line “I’m the commander in chief” talk, Bush was tied in knots about the whole war powers business. A bracing little tour of President George H. W. Bush’s private diaries and letters from his months of captivity in the Should-I-Make-War-on-Saddam hall of mirrors is instructive:

The president was aware of the political risks in going to war without some show of congressional support. His best ally in the Senate, Bob Dole, had publicly said that this was “make or break time” for the Bush presidency. But Dole hadn’t exactly been clamoring for Congress to take any of the burden of decision on themselves. “If we in Congress want to participate, then we owe our boys and the president support for policy.”
If we want to participate?
There’s a choice? Bush hoped not. “Is there a way for
the president to fulfill
all
his responsibilities to Congress by saying, a few days before any fighting was to begin, ‘hostilities are imminent—period!’ ” Bush asked his White House counsel. “Is there something short of ‘declaring’ war that satisfies Congress yet doesn’t risk tying the president’s hands?… Please hand carry your reply to Brent for ‘Eyes Only’ transmission to me.”

Bush did take the time to write a personal and private letter asking for advice from Sen. Bob Byrd, a Democrat, but a fair one, Bush thought, and a stickler for constitutional correctness. When Byrd told the president he was obligated to ask for a declaration of war, Bush waved it off. The president was in a muddle. He was concerned enough about Congress to ask the counsel of one of the wisest solons of the Senate, then miffed by the idea that the Senate had something to say.

Bush wrote about his war decision in his diary over and over again, in tones halfway between confession and pep talk. “I’m getting older but does that make it easier to send someone’s son to die, or does that make it more difficult? All I know is that it’s right … and I know what will happen if we let the 15th slide by and we look wimpish, or unwilling to do what we must … and I keep thinking of the … Marines and the Army guys—young, young, so very young.… They say I don’t concentrate on domestic affairs, and I expect that charge is true: but how can you when you hold the life and death of a lot of young troops in your hand?”