President Bush last fall dismissed the Iraqi parliament’s deliberation on and rejection of the UN arms-inspections resolution as “political theater.” As he put it, the parliament is “nothing but a rubber stamp for Saddam Hussein.”
That’s funny, coming from a man who has declared he has the power to launch an unprovoked war against Iraq whether the U.S. Congress approves or not.
Bush of course was referring to the aping of democracy in Saddam Hussein’s autocratic government. Obviously, the parliament cannot stop Hussein from doing what he wants to do. Most Americans joined the president in laughing at the farce.
Maybe it’s a case of whistling past the graveyard.
While I don’t mean to imply that there are no differences between the Iraqi and U.S. systems, it can be demonstrated that the differences are not nearly as significant as many would like to think.
The most obvious superficial difference is in the matter of elections. Iraq has them at the parliamentary and presidential levels, but few would maintain they are legitimate. In 2000, one of Saddam Hussein’s sons was elected to parliament with 99.99 percent of the vote. Saddam was reported to have received 100 percent in the last presidential election.
No one takes these results seriously.
But the U.S. election system isn’t exactly what it’s cracked up to be. Leaving aside the power of incumbency, campaign-finance regulations, and the barriers to third parties, there is a voluminous scholarly literature showing that the widespread belief that elections reveal the “will of the people” is a superstition ranking with belief in the tooth fairy. Among the points this literature establishes is that in elections with more than two candidates, the outcome can be different depending on the method of voting. In other words, with the common plurality principle, one candidate might win. With a runoff system, another might win. And the third might win in a system in which voters ranked their first, second, and third choices. This is a serious indictment of the election principle.
This is not the only similarity between the systems. Bush scoffed at the Iraqi parliament as a rubber stamp. Maybe he should tread lightly. Since September 11, major pieces of legislation have been enacted under such pressure from the Bush administration, that, according to Congressman Ron Paul, members of the House had no time to read the bills. Congressman Paul has made this complaint about the USA PATRIOT Act and Homeland Security Act. Both vastly expanded the power of government to intrude on our privacy. Yet the House was not permitted the luxury of careful deliberation. The president and the Republican House leadership worked in tandem to ensure that.
Before Americans gloat at Iraq, they should keep that in mind.
Declaring war in Iraq and the U.S.
And what about the biggest question of all, war? Are we really so different? I imagine that Hussein did not need to ask his parliament for a declaration of war when he attacked Iran in 1980 and Kuwait in 1990. But that was the position the Bushes took in 1990 and 2002. Each went to Congress only after concern was expressed about a presidential war. But each maintained that he did not need authorization. The debates that occurred were not much more than political theater, to borrow Bush II’s phrase.
Moreover, those resolutions did not satisfy the U.S. Constitution’s requirement that Congress declare war.
Two important constitutional principles must be understood. First, the Constitution gives the power to declare war exclusively to the Congress. Second, Congress may not delegate its authority to another branch of the government. But that is exactly what the Congress did in 2002.
The resolution authorizes Bush to “use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security interests of the United States against the continuing threat posed by Iraq and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” The key phrase is “as he determines to be necessary and appropriate.” It would be consistent with the resolution for Bush to decide that it was neither necessary nor appropriate to use force against Iraq at all.
In other words, the Congress did not declare that a state of war exists between Iraq and the United States. On the contrary, the president will decide when and if a state of war exists. As then–House Minority Leader Richard Gephardt said, “We should deal with it [the Iraqi problem] diplomatically if we can, militarily if we must. And I think this resolution does that.”
That is unconstitutional.
Previous declarations of war
To see this point, it’s helpful to consider how other presidents asked Congress for the authority to wage war and how Congress responded.
On April 2, 1917, after Germany had resumed submarine warfare and sunk American ships, President Woodrow Wilson went before Congress to seek entry into World War I. He began his message by invoking the Constitution and its limits on presidential power:
“I have called the Congress into extraordinary session because there are serious, very serious, choices of policy to be made, and made immediately, which it was neither right nor constitutionally permissible that I should assume the responsibility of making.”
After detailing Germany’s hostile acts against the United States, Wilson said,
“With a profound sense of the solemn and even tragical character of the step I am taking and of the grave responsibilities which it involves, but in unhesitating obedience to what I deem my constitutional duty, I advise that the Congress declare the recent course of the Imperial German Government to be in fact nothing less than war against the Government and people of the United States; that it formally accept the status of belligerent which has thus been thrust upon it, and that it take immediate steps not only to put the country in a more thorough state of defense but also to exert all its power and employ all its resources to bring the Government of the German Empire to terms and end the war.”
Four days later Congress passed a joint resolution, declaring,
“Whereas the Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America: Therefore be it Resolved … That the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States.”
Similarly, on December 8, 1941, the day after Japan attacked Pearl Harbor, President Franklin Delano Roosevelt went before Congress and said, “I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, a state of war has existed between the United States and the Japanese Empire.”
That same day Congress, echoing their predecessors of 24 years earlier, passed a joint resolution, declaring,
“That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”
Note that those congresses did not leave it up to the presidents to decide whether they would engage in warfare against Germany and Japan. Acceding to the presidents’ requests, they acknowledged existing states of war and authorized Wilson and Roosevelt to use the armed forces to bring it to a conclusion.
This is a far cry from what Congress did in 2002. President Bush did not inform Congress that a state of war existed between Iraq and the United States. He did not detail Iraq’s hostile acts against the United States (of which there are none). And Congress did not recognize an existing state of war. Instead, it illegally delegated its constitutional responsibility to the president, as if to say, “You decide when and if there is a state of war. You decide what to do about it.”
The conclusion is difficult to avoid: the U.S. and Iraqi political systems are not as far apart as one might think.
