By Whose Authority?

The Washington Post, Michael Kinsley, March 21, 2003

Until this week, the president's personal authority to use America's military might was subject to two opposite historical trends. On the one hand, there is the biggest scandal in constitutional law: the gradual disappearance of the congressional declaration of war. Has there ever been a war more suited to a formal declaration -- started more deliberately, more publicly, with less urgency and at more leisure -- than the American war on Iraq? Right or wrong, Gulf War II resembles the imperial forays of earlier centuries more than the nuclear standoffs and furtive terrorist hunts of the 20th and 21st. Yet George W. Bush, like all recent presidents, claims for his person the sovereign right to launch such a war. Like his predecessors, he condescends only to accept blank-check resolutions from legislators cowed by the fear of appearing disloyal to troops already dispatched.

On the other hand, since the end of World War II the United States has at least formally agreed to international constraints on the right of any nation, including itself, to start a war. These constraints were often evaded but rarely just ignored. And evasion has its limits, enforced by the sanction of embarrassment. This gave these international rules at least some real bite.

But Bush defied embarrassment and slew it with a series of Orwellian flourishes. If the United Nations wants to be "relevant," he said, it must do exactly as he says. In other words, in order to be relevant, it must become irrelevant. When that didn't work, he said: I am ignoring the wishes of the Security Council and violating the United Nations charter, in order to enforce a U.N. Security Council resolution. No, no, don't thank me! My pleasure!

By Monday night, though, in his 48-hour-warning speech, the references to international law and the United Nations had become vestigial. Bush's defense of his decision to make war on Iraq was basic: "The United States of America has the sovereign authority to use force in assuring its own national security." He did not claim that Iraq is a present threat to America's own national security but suggested that "in one year or five years" it could be such a threat. In the 20th century, threats from murderous dictators were foolishly ignored until it was too late. In this century, "terrorists and terrorist states" do not play the game of war by the traditional rules. They "do not reveal these threats with fair notice in formal declarations." Therefore, "responding to such enemies only after they have struck first is not self-defense. It is suicide."

What is wrong with Bush's case? Sovereign nations do have the right to act in their own self-defense, and they will use that right no matter what the U.N. charter says or how the Security Council votes. Waiting for an enemy to strike first can indeed be suicidal. So?

So, first of all, the right that Bush is asserting really has no limits, because the special circumstances he claims aren't really special. Striking first in order to preempt an enemy that has troops massing along your border is one thing. Striking first against a nation that has never even explicitly threatened your sovereign territory, except in response to your own threats, because you believe that this nation may have weapons that could threaten you in five years, is something very different.

Bush's suggestion that the furtive nature of war in this new century somehow changes the equation is also dubious, and it contradicts his assertion that the threat from Iraq is "clear." Even in traditional warfare, striking first has often been considered an advantage. And even before this century, nations rarely counted on receiving an enemy's official notice of intention to attack five years in advance. Bush may be right that the threat from Iraq is real, but he is obviously wrong that it is "clear," or that other nations as interested in self-preservation as we are (and almost as self-interested in the preservation of the United States as we are) would see it as we do, which most do not.

Putting all this together, Bush is asserting the right of the United States to attack any country that may be a threat to it in five years. And the right of the United States to evaluate that risk and respond in its sole discretion. And the right of the president to make that decision on behalf of the United States in his sole discretion. In short, the president can start a war against anyone at any time, and no one has the right to stop him. And presumably other nations and future presidents have that same right. All formal constraints on war-making are officially defunct.

Well, so what? Isn't this the way the world works anyway? Isn't it naive and ultimately dangerous to deny that might makes right*? Actually, no. Might is important, probably most important, but there are good, practical reasons for even might and right together to defer sometimes to procedure, law and the judgment of others. Uncertainty is one. If we knew which babies would turn out to be murderous dictators, we could smother them in their cribs. If we knew which babies would turn out to be wise and judicious leaders, we could crown them dictator. In terms of the power he now claims, without significant challenge, George W. Bush is now the closest thing in a long time to dictator of the world. He claims to see the future as clearly as the past. Let's hope he's right. [* "for might makes right", a line from Tom Lehrer's song "Send the Marines"]