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Mario Cuomo: What the Constitution Says about Iraq
Via NY Transfer News Collective * All the News that Doesn't Fit
LA Times Op-Ed via Common Dreams
republished by CubaNow - Oct 1, 2007
http://www.cubanow.net/global/loader.php?&secc=10&item=3432&c=2
Op-Ed:
What the Constitution Says About Iraq
Congress and the Courts Must Recommit to the
Legislative Branch's Sole Authority to Declare War.
By Mario M. Cuomo
Most Americans want the war in Iraq ended, but it continues
and Americans are killed, mutilated or wounded every day, as the
Democratic majorities in Congress struggle to produce legislation that
will take our forces out of harm's way. Meanwhile, President Bush
continues to insist that as commander in chief, he has the
constitutional power to go to war and decide when to end it,
unilaterally. At the same time, another possible disaster emerges from
the shadows: Bush appears to be considering a military assault on Iran,
again apparently without Congress declaring war first.
How did we get to this point and what, if anything, can we do now?
The war happened because when Bush first indicated his intention to go
to war against Iraq, Congress refused to insist on enforcement of
Article I, Section 8 of the Constitution. For more than 200 years, this
article has spelled out that Congress " not the president " shall have
"the power to declare war." Because the Constitution cannot be amended
by persistent evasion, this constitutional mandate was not erased by
the actions of timid Congresses since World War II that allowed eager
presidents to start wars in Vietnam and elsewhere without a
"declaration" by Congress.
Nor were the feeble, post-factum congressional resolutions of support
of the Iraq invasion " in 2001 and 2002 " adequate substitutes for the
formal declaration of war demanded by the founding fathers.
What can be done now?
First, Democrats should make clear that it is the president who is
keeping the war in Iraq from ending. Even if Congress were able to pass
a veto-proof bill with respect to withdrawal, the president would
resist enforcement of the bill, insisting that as commander in chief,
he is immune from Congress' decision. That would raise a constitutional
issue for the courts.
But judging by the courts' history concerning constitutional war
powers, including decisions involving the Iraq war in the U.S. 1st
Circuit Court of Appeals in Massachusetts, the judiciary would, in all
probability, choose not to intervene, claiming that the disagreement
between the president and Congress is a political question.
However, the political-question thesis is nowhere referred to in the
Constitution, and it denies the people the protection of the
Constitution in dealing with perhaps the most serious question the
nation has to face: "Should we go to war?" That position should be
challenged as an abdication of constitutional duty by the courts, but
the sad truth is that the current conservative-dominated Supreme Court
would probably support our current conservative president. As a
practical matter, that means only the president can end this waror
change our strategy in Iraq.
Even if it is too late for Congress to remedy its failure to comply
with the Constitution with respect to Iraq, at the very least our
candidates for president and our congressional leaders should assure us
that they will not allow this lapse to result in further unilateral
acts of war " against Iran, Pakistan or any other nation " by this
president or any other. Our leaders must make it clear that in the
future, Congress will insist on compliance with Article I, Section 8
for any military action that is not fairly deemed an unexpected
emergency.
It is frightening that our government has permitted this fundamental
and costly constitutional transgression to persist for more than four
years.
We must do everything we can to end the war in Iraq and avoid a new
tragedy abroad by recommitting to strict adherence to the rule of law
and to the Constitution by the president, Congress and the courts "
especially with respect to war powers.
[Mario M. Cuomo, the governor of New York from 1983 to 1995, now
practices law in New York.]
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