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Article Information Journal Title: Executing the Constitution : putting the president back into the Constitution

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TEN

The "Imperial Presidency'' Triumphant: War Powers in the Clinton and

Bush Administrations

Michael Cairo

The question of who has authority to deploy and use U.S. military troops and

force abroad is controversial and one that has been present since the Repub-

lic's founding. In contemporary U.S. politics, the controversy has been

decided in favor of the president. As Arthur Schlesinger Jr. argues, "presi-

dential primacy, so indispensable to the political order, has turned into pres-

idential supremacy," and we have seen an "appropriation by the Presi-

dency ... of powers reserved by the Constitution and by long historical

practice to Congress."1 According to Schlesinger, this is particularly evident

in war powers, where presidents have repeatedly claimed sweeping and uni-

lateral authority, threatening to create an "imperial presidency."

The imperial presidency threatened to emerge during the era of Viet-

nam and Watergate. Following President Richard Nixon's resignation, how-

ever, Congress was resurgent and the foreign policy power of the presidency

appeared to be waning. Despite this appearance, President Ronald Reagan's

abuse of powers leading to the Iran-Contra affair demonstrated that the impe-

rial presidency had not vanished. Contrary to efforts to leash presidential

power in foreign affairs, that power has continued to grow, especially with

regard to war powers. In the post-September 11 era, this issue is particularly important. In

dealing with terrorism and the threats it presents to the United States, the

George W. Bush administration pushes the boundaries on presidential use of

1 would like to thank my wife, Carey, for her excellent comments and suggestions.

199

200 MICIIAEL CAIRO

force and threatens the constitutional balance between the executive and

legislative branches. This trend, however, extends back to the Clinton

administration, where a similar abuse of presidential war powers occurred.

Historically, the constirutional ambiguity of war powers has produced

tension between the executive and legislative branches, but the Clinton and

Ccorgc W. Bush administrations have advanced the abuse of presidential

power in the usc of force and exacerbated the already-existing tension. This

surprised some because both presidents lacked foreign policy experience

when they entered the White House and l"hc cold war was no longer an

emphasis for policymakcrs. These factors led some to suggest that Congress

would be more assertive in foreign policy and recapture irs war powers.' How-

ever, the nature of the new threats that emerged and the ambiguity of the

world political environment worked against the rise of a more resolute Con-

gress and served to enhance presidential war power. In addition, and to the

chagrin of many, presidents Clinton and Bush used the United Nations (UN)

in expanding their presidential power. This chapter examines war powers with a particular emphasis on the

Clinton and Ceorge W. Bush administrations. It begins with a discussion of war powers and the Constitution, demonstrating the ambiguity and the

shared nature of war powers. It then proceeds to examine cases of war powers

in the Clinton and Ceorge W. Bush administrations, focusing on the war on

terrorism and Iraq. Finally, the chapter summarizes the issues and draws some

conclusions, arguing that war powers no longer reflect the balance of shared

powers the Constitution established. Instead, presidents have claimed and

exercised unilateral decision-making authority with regard to war powers.

Presidents Clinton and Bush have further contributed to the abuse of war

powers not only by subverting Congress and its constit·utional authority, but

also by using the United Nations as the basis of presidential claims of unilat-

eral war powers. In the <Jrea of war powers, the Constitution no longer reflects

the idea of "separated institutions sharing powers,"3 but rather a triumph of

the "imperial presidency."

WAR POWERS AND THE CONSTITUTION

To the casual observer, the president, as commander in chief, appears entitled

to unilateral military powers when deploying and using U.S. troops and f(:Jrces

abroad. One of the many arguments in favor of presidential war powers is the

Minority Report of the Congressional Committees lnvestig<~ting the Iran-

Contra Affair. According to the report, no fewer than 118 occasions of force

occurred without prior legislative authorization. "The relevance of these

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 201

P eated examples of the extensive use of armed force" it ar «· h

re ) , . . , . ' gues, IS t atthey . dicate how far the l residents mherent powers were . . d 10 .., . assume to have

ached when Congress was silent, and even in some cases h C re . . . , 4 , w ere ongress had Prohibited an action. Former Senator John Tower also a d h C . . rgue t at on-

ess should not encumber presidents m the foreign policy s R b gr . . process. 0 crt Bork concurs, argumg that morality should be a president's guide and Con-

gress should abstam from deCisiOns on the use of force.6 Supreme Court Jus-

tice George Sutherland presented the strongest argument on behalf of presi-

dential war powers, h~wever, m :936. In his written opinion in U.S. v. Curtiss-Wright E:>..1JOrt CorjJ. et al., Sutherland wrote that the president is the "sole organ of the federal government in the field of international relations"

and has "plenary and exclusive" po~er as president. Congress, he suggested, was meant to play a secondary role m U.S. foreign policy.?

Presidential practice has also relegated Congress to a backseat in deci-

sions on the use of force. Since World War ll, Congress has never specifically

declared war. In the Korean War, the Truman administration argued, "the

President's power to send Armed Forces outside the country is not dependent

on Congressional authority."8 Secretary of Defense Richard Cheney echoed

this sentiment prior to the Persian Gulf War. Cheney explained that he did

"not believe the president requires any additional authority from Congress"

to engage U.S. forces abroad. 9 During his 1992 presidential election cam-

paign, President George H. W. Bush stated that he did not need "some old

goat" in Congress to evict Saddam Hussein from Kuwait. 10

Contrary to these arguments and presidential practice in general, the

Founders did not intend to grant presidents exclusive authority in war pow-

ers. The belief that Congress should not get in the president's way when

national security matters arise is clearly popular, but the Constitution con-

tradicts this. According to the Constitution, Congress and the president are

given specific foreign policy powers and each plays a role to ensure that U.S.

foreign policy is effective. In fact, the Constitution grants broad power to

Congress, not the president. Although the president is given the powers to

nominate ambassadors, negotiate treaties, and direct the armed forces as com-

mander in chief, the Congress is granted the powers to regulate commerce,

raise and support armies, provide and maintain a navy, and declare war. Thus,

the Constitution originally empowered Congress in military matters.

In drafting the Constitution, the Founders were concerned about cor-

recting the deficiencies of the Articles of Confederation. The Articles

bestowed all legislative and executive authority in the Congress. Article 6 gave Congress control over conduct of foreign affairs, and Article 9 gave

Congress "the sole and exclusive right and power of determining on peace

202 MICHAEL CAIRO

and war."" Unlike the Articles, the Constitution was founded on the princi-

ple of separation of powers-a division of authority between government

branches. In foreign policy, that division was ambiguous. Experience under

the Articles led the Founders to favor greater centralization of executive

authority in the Constitution. Alexander Hamilton, writing in Federalist 70, explains, "energy in the Executive is a leading character in the definition of

good government." 11· When constructing the Constitution, however, the

Founders favored less centralization based on their experiences with the

monarchy. Nothing was more crucial than the successful conduct of foreign pol-

icy and the Founders agreed that national safety could best be ensured

through trade. The Constitution gave clear priority to commercial relations

and vested control over commerce in Congress. Congress was also brought

into the treaty-making power. Unlike the monarch, who could approve

treaties without Parliament, presidents would have to consult Congress and

receive its acceptance of treaties. Congress was also given other weighty

powers in foreign policy, including appropriations, and the power to declare

war.ll The Constitution makes clear that the Founders were determined to

deny presidents the sole prerogative of making war and peace. The

Founders designed a system that, according to James Wilson, would not

"hurry us into war; it is calculated to guard against it. It wi 11 not be in the

power of a single man, or a single body of men, to involve us in such dis-

tress."H In fact, the Founders chose not to mention the presidency in the

war-making power. This, however, did not deny presidential powers. The Constitution

vested the command of the Army and Navy in the presidency. The presi-

dent's power as commander in chief provided presidents with the ability to

respond to national emergencies. The Founders clearly agreed with John

Locke that in an emergency responsible rulers could resort to exceptional

power. Legislatures were too large and unwieldy to capably cope with a crisis.

According to Locke, when the executive perceived an emergency, he could

initiate extralegal, or even illegal, measures but the leader would only be vin-

dicated in these actions if the legislature and public sanctioned his actions. 15

Prerogative is not found in the Constitution, but the Founders believed

in the doctrine. Despite possessing prerogative, the executive clearly was

expected to report to Congress after acting so that the Congress could judge

the action. As a last resort, when the executive abused the power of prerog-

ative, Congress was granted the power of impeachment.

The Constitution thus established a shared system. This constitutional

division of foreign affairs powers only served to cause confusion. Almost

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 203

immediately after the founding of the new republic, the question of war pow-

ers emerged as a prominent issue of debate. In 1793 President George Wash-

ington unilaterally proclaimed U.S. neutrality in the war between France

and Great Britain despite the existence of an alliance with France. Alexan-

der Hamilton defended the action, arguing that foreign policy was an exec-

utive function and the powers of declaring war and ratifying treaties

bestowed on Congress were "exceptions out of the general 'executive power'

vested in the President." These powers were to be "construed strictly, and

ought to be extended no further than is essential to their execution."

Although Congress had the right to declare war, the president had the duty

to preserve peace until the Congress did so. "The legislature," he argued, "is

still free to perform its duties, according to its own sense of them; though the

executive, in the exercise of constitutional powers, may establish an

antecedent state of things, which ought to weigh in the legislative decision."

In short, each branch had a duty to exercise its power, possessing concurrent authority.' 6

James Madison responded to Hamilton's defense of Washington's proclamation of neutrality, denying that the powers of making wars and

treaties were inherently executive. The fact that they were royal preroga-

tive, Madison argued, did not make them presidential prerogatives. The

power to declare war must include everything necessary to make that power

effective, including the congressional right to judge whether the United

States was obliged to declare war. According to Madison, this judgment could not be foreordained by presidential decisions. 11 Thus, whereas Hamil-

ton saw congressional power to declare war as limited, Madison viewed it as very powerful.

The issue was never truly settled because the argument remains today.

The question that continues to plague the United States is not whether

Congress can declare war, but whether Congress must declare all types of

war, both general and limited. According to the Founders, hostilities,

whether general or limited, appear to require congressional sanction. In

1801 Chief Justice John Marshall wrote, "the whole powers of war being

vested in Congress ... the Congress may authorize general hostilities ... or

partial war." 18

The Founders clearly divided war powers, but the ambiguity of the

Constitution left the door open to conflict. Although Congress is given the

sole power to initiate offensive war, the Constitution allows presidents to ini-

tiate defensive war; this has easily been enlarged. In the nineteenth and twentieth centuries, presidents strengthened their control of information and

secured a monopoly on diplomacy and war.

204 MICHAEL CAIRO

WAR POWERS IN THE CLINTON AND BUSH ADMINISTRATIONS

With the end of the cold war and the emergence of a new world order, war

powers appeared to diminish as an important issue. However, war powers

reemerged with a vengeance in the Clinton and Bush administrations.

Despite the belief that a new world order would mean a new era of peace, it

has brought greater conflict and more opportunities for war. The uncertainty

of world politics has given presidents greater latitude in the usc of force. Pres-

idents Clinton and Bush both claimed unilateral presidential powers in the

usc of force. Although this is similar to past presidential claims, the nature of

the threat environment led many to accept their claims with greater case.

With the collapse of the Soviet Union in 1991 and the subsequent end

of the cold war, the United States became the lone superpower. The prospects

for international peace seemed considerably better. Many had hopes that the

end of the cold war would mean the end of conflict, yet one could argue th<Jt

conflict has been more prevalent than during the cold war era. Conflict has

also not focused on any one issue, but rather multiple issues, including ethnic

conflict, civil war, genocide, and terrorism. The uncertainty of the post-cold

war environment has increased presidential power because the usc of force in

U.S. foreign policy remains a key component in this uncertain world.

In dealing with terrorism and Iraq, in particular, presidents Clinton and

Bush abused their power. Both of these cases offer good examples for multi-

ple reasons. First, these issues span both presidencies and analysis can

uncover patterns. Second, both issues have been central to U.S. national

security since the end of the cold war. Finally, both issues demonstrate how

each president used the United Nations to justify his use of power.

The Clinton Administration and Saddam Hussein

On August 2, 1990, Saddarn Hussein, the leader of Iraq, invaded and

annexed Kuwait, seizing Kuwait's vast oil reserves and liquidating billions of

dollars of loans provided by Kuwait during the Iran-Iraq War. Within

months, the George H. W. Bush administration assembled a coalition of

forces, supported by the United Nations, to remove the Iraqi army from

Kuwait. On January 17, 1991, Operation Desert Storm, which was autho-

rized by UN Resolution 678 and by a congressional vote endorsing the

action, ensued.

The international coalition proved victorious and instituted UN Reso-

lution 687, giving the UN Special Commission (UNSCOM) complete access

to Iraqi facilities to search for weapons of mass destruction. In addition, the

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 205

UN Security Council also passed UN Resolution 688, condemning Iraqi

actions against the Kurdish population and authorizing relief organizations to

provide humanitarian aid. Pursuant to these resolutions, but without specific

UN Security Council authorization, a no-fly zone was established, prohibit- ing Iraqi flights in northern and southern Iraq.

President-elect Clinton inherited this policy toward Iraq and a hostile

Hussein. Almost immediately, Clinton faced mounting tensions between the

United States and Iraq. In April 1993 former President Bush visited Kuwait.

Prior to his visit, the Central Intelligence Agency (CIA) and Federal Bureau

of Investigation (FBI) uncovered an assassination plot against Bush and

linked the Iraqi government to that plot. As a response to this plot, Clinton

responded with an attack, using precision-guided missiles. Clinton justified the bombings in a statement to Congress, noting "our inherent right to self-

defense as recognized in Article 51 of the United Nations Charter and pur-

suant to [his] constitutional authority with respect to the conduct of foreign

relations and as Commander in Chief."' 9 In an address to the American pub-

lic about the strikes, Clinton added, "There should be no mistake about the

message we intend these actions to convey to Saddam Hussein .... We will

combat terrorism. We will deter aggression .... While the cold war has

ended, the world is not free of danger. And I am determined to take the steps necessary to keep our Nation secure."10

In 1996 Clinton used force against Hussein in support of Iraq's Kurdish

population. One Kurdish faction, the Patriotic Union of Kurdistan (PUK),

accepted arms from Iran and Hussein responded by attacking the PUK's

headquarters in northern Iraq, attempting to crush the opposition. In

response, Clinton ordered a missile attack on targets in southern Iraq. In jus- tifying this attack, Clinton relied on humanitarian arguments stressing UN

Resolution 688 explaining, "Earlier today I ordered American forces to strike

Iraq. Our missiles sent the following message to Saddam Hussein: When you

abuse your own people ... you must pay a price."21 During his weekly radio

address, Clinton added, "America's policy has been to contain Saddam, to

reduce the threat he poses to the region, and to do it in a way that makes him

pay a price when he acts recklessly." 22

The next major crisis with Iraq occurred in 1998 when Saddam Hussein

refused UNSCOM weapons inspectors access to certain sites, as the provisions

of UN Resolution 687 outlined. Hussein argued that U.S. involvement in the

inspections was the problem. The Clinton administration suggested that diplo-

macy was their main instrument in solving the crisis, but reserved the right to

use force. Implicit in the administration's argument for the use of force was that

the administration had the authority to do so. In an address at Tennessee State

206 MICHAEL CAIRO

University, Secretary of Swte Madeleine Albright stated, "We will work for

that peaceful solution as long as we can. But if we cannot get such a solution-

and we do believe that the time for diplomacy is running out-then we will usc

force."" Days before, in a statement before the House lnrernation<Jll<-clations

Committee, Albright remarked, "Let no one miscalculate. We have authority

to do this, the responsibility to do this, the means and the will."H

By the end of February, however, UN Secretary-General Kofi Annan

had negotiated a diplom<Jtic solution to the crisis. The Clinton administra-

tion responded by sponsoring a successful resolution in the UN Security

Council. Resolution 1154 explained that Iraq would face the "severest con- sequences" if it failed to comply with UNSCOM.'5 President Clinton made

clear that the UN Security Council's decision authorized the usc of f(Jrce

against Iraq, despite opposition from other members of the UN Security

Council. In remarks the day after the UN Security Council vote on Resolu-

tion 1154, Clinton stated, "The Covernrnent of Iraq should be under no illu- sion. The meaning of 'severest consequences' is clear. It provides authority to

act if Iraq does not turn the commitment it has now made into comphmce."21'

In December 1998 Clinton attacked Iraq after a series of diplomatic conflicts over UNSCOM. In an address to the American public, Clinton

explained th8t Iraq had been given numerous opportunities to con:ply and

must face the "consequences of defying the U.N."11 In a letter to Congress,

Clinton justified the attacks citing UN Security Council Resolutions 6 78 and 687, authorizing "811 necessary means" to ensure lraqi compliance. He also referred to the power granted to the president under Public Law 102-1, which authorized President Bush to use force against Iraq in 1991 Y

Clinton's actions toward lraq established a pattern that continued into

the Ceorgc W. Bush administration. First, the Clinton administration took

action with little congressional consultation. In fact, Congress remained rela-

tively silent on each occasion. Some of this silence can be attributed to public

approval of Clinton's actions. For example, in the 1993 case, 61 percent of the public approved of the action raken.19 Second, the Clinton administration

claimed unilateral powers under the commander in chief clause of the Consti-

tution and UN Security Council authorizations. Justifying the attacks based on

UN Security Council authorization broadly defined presidential and U.S. power.

The Clinton Administration and Osama bin Laden

The Clinton administr8tion's abuse of war powers with regard to Iraq paled

in comparison to its abuse of war powers in its decision to strike the alleged

terrorist bases of Osama bin Laden. The threat of terrorism became- 8 more

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 207

prominent foreign policy concern in the 1990s. In 1998, President Clinton

unilaterally authorized air strikes against alleged terrorist sites. These strikes

were not only conducted unilaterally, but also were executed without prior authorization from the United Nations.

Although terrorism was not considered a central threat to U.S. inter-

ests when Clinton took office, it quickly became one. By the end of the Clin-

ton administration's first term the federal building in Oklahoma City had

been bombed, the World Trade Center had been victimized by terrorists, and

U.S. troops were killed in Saudi Arabia when terrorists exploded a car ncar a

military complex. These events, among others, pushed terrorism to the cen-

ter of U.S. interests. Like its predecessors, the Clinton administration

attempted to deal with terrorism through multilateral, diplomatic channels.

Despite these efforts, however, terrorists struck the U.S. embassies in Kenya

and Tanzania on August 7, 1998. These attacks were soon attributed to

Osama bin Laden and his terrorist network, a! Qaeda.

Following the Soviet withdrawal from Afghanistan in 1989, Osama bin

Laden established training camps for Islamic radicals from across the world.

Bin Laden had been a wealthy financier of the resistance to the Soviet Union

in Afghanistan. Returning to his native Saudi Arabia, bin Laden targeted

U.S. and Saudi interests. In 1991 Saudi Arabia expelled him to Sudan where

Sudan's radical Islamist regime supported him. In 1996 he retreated back to

Afghanistan on the eve of the Taliban's seizure of power. In 1997 from his

hidden caves in the mountains of Afghanistan, CNN's Peter Arnett inter-

viewed bin Laden. He declared a jihad against the United States for its sup-

port of Israel, U.S. military presence in Saudi Arabia, the home to the holi-

est shrines of Islam, Mecca and Medina, and "other acts of aggression and

injustice" in Muslim countries.30

When the U.S. embassies in Kenya and Tanzania were bombed, 300 peo-

ple were killed, including 12 Americans, and nearly 5,000 people were injured.

Six days later, the Clinton administration responded with tomahawk missile

attacks on alleged bin Laden bases in Afghanistan and Sudan. In an address to

the nation, President Clinton provided four justifications for the attacks:

I ordered this action for four reasons: first, because we have convincing evidence these groups played the key role in the Embassy bombings in Kenya and Tanzania; second, because these groups have executed ter- rorist attacks against Americans in the past; third, because we have compelling information that they were planning additional terrorist attacks against our citizens and others ... ; and fourth, because they are seeking to acquire chemical ... and other dangerous weapons.3 '

208 MICHAEL CAIRO

In his letter to congressional leaders notifying them of the attack, he added:

The United States acted in exercise of our inherent right of self-defense consistent with Article 51 of the United Nations Charter. These strikes were a necessary and proportionate response to the imminent threat of future terrorist attacks against U.S. personnel and facilities .... I directed these act:ions pursuant to my constitutional authority to con- duct U.S. foreign relations and as Commander in Chief and Chief

Execu tivc.ll

Not only did Clinton rely on the UN Charter and his powers as com-

mander in chief for his actions, but he also suggests that these actions were

an inherent right of his power as chief executive. This sounds fmniliarl y like

Hamilton's argument that foreign policy was an executive function and the

powers of declaring war and ratifying treaties bestowed on Congres~ were

"exceptions out of the general 'executive power' vested in the President.""

Clinton was relying on the Hamiltonian interpretation of the Constitution.

If we accept the notion that bin Laden was planning a second attack, the

president was acting on behalf of the country's defense to repel the attack. His

successor, Ceorge W. Bush, would incorporate these notions into U.S. foreign

policy, vastly expanding the powers of the presidency in foreign affairs.

THE BUSH ADMINISTRATION: INCREASING RISKS, INCREASING POWER

ln the Ceorge W. Bush administration, the war on terrorism and policy

t:oward Iraq are intertwined. This became clear after the September 11, 2001,

terrorist attacks on the United States. On that day, terrorists struck the

World Trade Center Twin Towers and the Pentagon, killing thousands. Fol-

lowing these attacks, Bush made clear his intentions vowing, "Terrorism

against our nation will not stand."'4 He further argued, "War has been waged

against us by stealth <md deceit and murder," granting the president full

authority to defend against the threat. 35 The policy would eventually become

the Bush Doctrine, including not only terrorist groups, but rogue states.

On September 12, the UN Security Council adopted a resolution con-

demning the attacks, declaring that they constituted a "threat to interna-

tional peace and security." In addition, the resolution recognized the "inher-

ent right of individual or collective self-defense in accordance with the

Charter."3" On September 28, the UN Security Council unanimously adopted

a historic resolution directed toward combating terrorism and states that sup-

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 209

port, harbor, provide safe haven to, supply, finance, help recruit, or aid ter-

rorists. The resolution required cooperation of all member states in a wide

range of areas. 37 Resolution 1373 established a comprehensive legal frame-

work for addressing the threat of international terrorism. It also provided 3 basis for the Bush Doctrine.

On October 7, the U.S. ambassador to the United Nations, John

Negroponte, delivered a letter to the president of the UN Security Council

stating that the United States, together with other states, had "initiated

actions in the exercise of its inherent right of individual and collective self

defense." These actions were taken against al Qaeda terrorist camps and mil-

itary installations in Afghanistan, which had a "central role in the attacks."

The letter went on to state that the United States "may find that our self-

defense requires further actions with respect to other organizations and other

States."38 This letter was the birth of the Bush Doctrine, which asserted the

right of the United States to use military force in "self-defense" against any

state that aids, harbors, or supports international terrorism, and it had pro-

found implications. Most significantly, Ambassador Ncgroponte's letter left

open the possibility that a state may intervene in anticipatory self-defense,

without UN Security Council authorization, in another state that is alleged

to be aiding, harboring, or supporting terrorism. Secretary of Defense Donald

Rumsfeld later added:

The only way to deal with the terrorists ... is to take the battle to them, and find them, and root them out. And that is self-defense. And there is no question but that any nation on Earth has the right of self-defense. And we do. And what we are doing is going after those people, and those organizations, and those capabilities wherever we're going to find them in the world, and stop them from killing Americans.39 ... That is in effect self-defense of a preemptive nature.40

In his January 2002 State of the Union address, Bush, referring to

North Korea, Iran, and Iraq, argued, "States like these, and their terrorist

allies, constitute an axis of evil, arming to threaten the peace of the world ....

America will do what is necessary to ensure our nation's security .... I will

not wait on events while dangers gather. I will not stand by as peril draws

closer and closer."" With this statement, the president made clear his inten-

tions to wage war when he felt preventing threats to the United States was

necessary. The United States had been attacked, and Bush believed his

actions did not require congressional authority or consultation.

Although Bush had a strong argument for unilaterally exercising the

decision to use force with regard to the terrorist attacks on September 11, he

210 MICJIAEL CAIRO

used that argument to extend his authority and shift U.S. foreign policy.

Throughout the spring and summer 2002, the Bush administration devised its

strategy for approaching the world. The mltional security strategy that

emerged in September 2002 represents the most sweeping transformation in

U.S. foreign policy since the beginning of the cold war. The strategy sets forth

three tasks: "We will defend the peace by fighting terrorists and tyrants. We

will preserve the peace by building good relations among great powers. We will

extend the peace by encouraging free and open societies on every continent."11

These tasks have profound implications for the Bush administration's

foreign policy. More significantly, the strategy links terrorists with tyrants, the

axis of evil and its allies, as sources of danger in the world. Since September

11, it argues, the United States no longer makes a "distinction between ter-

rorists and those who knowingly harbor or provide aid to them." Further-

more, the Bush administration articulates that it docs not believe that tradi-

tional U.S. strategies such as containment and deterrence will be effective

against these new threats. According to the strategy, these terrorists <Jnd

tyrants are seeking weapons of mass destruction to threaten U.S. security.

Faced with this elevated threat to U.S. interests and the American way of

life, the strategy argues, "America will act against such emerging threats" and

will not "let our enemies strike first. "4'

The national security strategy establishes a doctrine of preemption,

relying on the argument that:

nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack .... Our priority will be first to disrupt and destroy terrorist orga- nizations .... We will disrupt and destroy terrorist organizations by .. . identifying and destroying the threat before it reaches our borders .. . we will not hesitate to act alone, if necessary, to exercise our right: of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country .... [O]ur best defeme is a good offense .... This strategy will turn adversity into opportunity. 44

In addition, the strategy links action against rogue states to action against ter-

rorists, expanding preemption:

[N]ew and deadly challenges have emerged from rogue states .... These states' pursuit of, and trade in, [weapons of mass destruction have] become a looming threat to all nations. We must be prepared to stop rogue states and their terrorist clients before they ... threaten or use

THE. "IMPERIAL PRESIDENCY" TRIUMPHANT 211

weapons of mass destruction against the United States. . [Tlhe United States can no longer solely rely on the reactive posture as we have in the pastY

The new strategy is proactive, rejecting the reactive strategies of con-

tainment and deterrence; its proactive stance is the basis for expanded presi-

dential power. The strategy suggests that due to the nature of the threat a

president may act alone to start a war against a perceived aggressor. The strat-

egy presents an incontestable moral claim that in certain situations preemp-

tion is preferable to doing nothing and relies on Article 51 of the U.N. Char-

ter for its legitimacy. In fact, the entire strategy is based on the presumption

rhat a president can and must act to prevent future attacks on the United

States or U.S. interests. Although such a policy may have its merits, it denies

the necessity for congressional action of any kind in the use of force.

The irony of this policy is that although it does not require interna-

tional support, the Bush administration has sought international support for

it, using the United Nations and international law to justify the implemen-

tation of the national security strategy. On September 13, 2002, Bush

addressed the UN General Assembly in New York City. He linked U.S. strat-

egy to the purposes of the United Nations and justified using force against

rogue states such as Iraq:

The United Nations was born in the hope that survived a world war, the hope of a world moving toward justice, escaping old patterns of conflict and fear. The founding members resolved that the peace of the world must never again be destroyed by the will and wickedness of any man .... After generations of deceitful dictators and broken treaties and squandered lives, we dedicated ourselves to standards of human dignity ... and to a system of security defended by all. Today, these standards and this security are challenged .... Above all, our princi- ples and our security are challenged today by outlaw groups and regimes that accept no law of morality and have no limit to their vio- lent ambitions.46

Bush proceeded to make clear that the new doctrine of preemption,

and the United Nations' relevancy, would be tested in Iraq. "In one place-

in one regime-we find all these dangers in their most lethal and aggressive

forms, exactly the kind of aggressive threat the United Nations was born to

confront."47 Bush proceeded to lay out the case for using force against Iraq,

which, he argued, had made a series of commitments to the United

Nations, dating back to 1991. Furthermore, Iraq repeatedly failed to meet

212 MICII/\H CAIRO

its commitments. Thus, preventing Iraqi aggression and securing the inter-

ests of the world from the Iraqi threat was left to the United States and the

United Nations:

Delegates to the General Assembly, we have been more than patient. We've tried sanctions. We've tried the carrot of oil for food and the stick of coalition military strikes. But Saddam Hussein has defied all these efforts and continues to develop weapons of mass destruction. The first time we rn<Jy be completely certain he has ... nuclear weapons is when ... he uses one. We owe it to all our citizens to do everything in our power to prevent: that day from coming. The conduct of the Iraqi regime is a threat to the authority of the United Nations and a threat to peace. Iraq has answered a decade of UN demands with a decade of defiance .... If Iraq's regime defies us again, the world must move delib- erately, decisively to hold Iraq to account. ... The Security Council resolutions will be enforced, the just demands of peace and security will be met, or action will be unavoidable. 4R

The administration consequently negotimed (] new UN Security Coun-

cil resolution. The intent of that resolution was to prepmc the way toward

military action in Iraq. Resolution 1441 passed the UN Security Council

unanimously on November 8, 2002, with a 1 S-0 vote in suppon of the reso- lution, and laid out what Iraq had to do to avoid war. The resolution cited

Iraq in "material breach of its obligations under relevant resolutions." Fur-

thermore, it offered Iraq "a final opportunity to comply with its disarmament

obligations." In its final phrases, the resolution warned Iraq that it would face

"serious consequences" because of continued violations of the UN Security

Council resolutions.'19

Iraq responded to Resolution 1441 by inviting UN weapons inspectors

back into the country. Throughout late 2002 and early 2003, the weapons

inspectors, headed by Hans Blix and Mohammed el Baredci, pursued their

task while the world watched and the United States continued to make its

case that Iraqi failure to comply would be met with swift action. In January

2003 Bush stated:

We're confronting the threat of outlaw regimes who seck weapons of mass destruction .... In the case of Iraq, the world has already spoken with one voice. The Iraqi regime has a duty under Security Council res- olutions to declare and destroy all of its weapons of mass destruction. That's what the world has said. That's what the United States expects from Saddam Hussein. The Iraqi regime is a grave threat to the United States .... The Iraqi regime has used weapons of mass destruction ....

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 213

Four years ago, UN inspectors concluded that lraq had failed to [account] for large Stockpiles of chemical and biological weapons .... In last month's declaration, lraq again failed to account for those weapons .... Saddarn Hussein was given a path to peace. Thus far, he has chosen the path of defiance .... We certainly prefer voluntary com- pliance by Iraq .... Yet, if force becomes necessary to disarm Iraq of weapons of mass destruction and enforce the will of the United Nations, if force becomes necessary to secure our country and to keep the peace, America will act deliberately, American will act decisively, and America will prevail. ... 10

And in his State of the Union speech, Bush reiterated that the United States

would use force if Iraq failed to comply with UN resolutions. "The world has

waited twelve years for Iraq to disarm ... let there be no misunderstanding:

If Saddam Hussein does not fully disarm ... we will lead a coalition to dis· arm hirn."51

Bush, like Clinton before him, stressed the importance of the United

Nations and used UN resolutions as a basis for using force against Iraq. On

February 6, 2003, Bush referred to lraqi noncompliance with UN resolutions

as a basis for using force. In addition, he challenged the United Nations to

act or face the possibility of becoming irrelevant:

Twelve years after Saddam Hussein agreed to disarm and ninety days after the Security Council passed Resolution 1441 by a unanimous vote, Saddarn Hussein was required to fully cooperate in the disarma· ment of his regime. He has not done so. Saddam Hussein was given a final chance. He is throwing that chance away .... On November 8, by demanding the immediate disarmament of Iraq, the United Nations Security Council spoke with clarity and authority. Now the Security Council will show whether its words have any meaning. Having made its demands, the Security Council must not back down when those demands are defied and mocked by a dictator .... The United States, along with a growing coalition of nations, is resolved to take whatever action is necessary to defend ourselves and disarm the Iraqi regime. 51

Bush continued to emphasize Iraqi noncompliance with UN resolutions

throughout February and into March, despite failed diplomatic attempts to

receive further UN support for action. On March 19, citing continued Iraqi

noncompliance with international law, Bush announced that a coalition of

thirty-five countries, led by the United States, began their attack on Iraq.

"Our nation enters this conflict reluctantly," he told the American people,

"yet our purpose is sure. The people of the United States and our friends and

214 MICIIJ\EL CAIRO

allies will not live at the mercy of an outlaw regime that threatens the peace

f d »53

with weapons o mass rnur cr. Following just over one month of warfare, the lnlqi regime crumbled

and U.S. troops occupied Baghdad, Imq's capital. Wirh rebuilding efforts

under way in Iraq, Bush immediately began efforts to fixus on another mem-

ber of the axis of evil-Iran, thus extending the Bush Doctrine of preemp-

tion. It is clear that the doctrine is firmly in place and presidential power will

remain strong as long 35 U.S. foreign policy cominucs to emphasize and

expand the war on terrorism.

IS CURBING THE IMPERIAL PRESIDENCY POSSIBLE7

Presidential abuse of war powers is not a new phenomenon. Since World War

II, however, presidential war power has vastly expanded and increased.

Despite the constitutional questions that presidential war power raises, it is

most likely to remain a problem for a variety of reasons. First:, Congress is

designed to be the primary check on presidential war powers. Since World

War II, however, Congress has been rather ineffective in checking presiden-

tial war powers. In some cases, Congress not only fails to combat presidential

war power, but also even voluntarily surrenders its legislative functions. In

both the Clinton and Ceorge W. Bush administrations, Congress never

declared war, but acti vcly supported the actions each president rook.

Second, contemporary presidents do not believe they need congres-

sional approval and have substituted congressional approval with interna-

tion<Jllegal sanction. Presidents Clinton and CJeorgc W. Bush both relied on international legal authority in the form of UN Security Council rcsol utions

t:o pursue military force. This suggests that presidents must no longer garner

congressional Glpproval when pursuing war, but must now acquire interna-

tional support and must meet obligations under international law. This, as

the George W. Bush case suggests, opens up the door to an even greater

expansion of presidential authority and power in the use of force.

Both presidents relied on Article 51 of the UN Charter, the inherent

right of self-defense, to enhance and justify their own and U.S. power. ln

addition, they both used UN Security Council resolutions as authority for

action. This pattern will continue to expand presidential power. As long as

the American public and Congress accept the United Nations as providing

necessary authority for the usc of force, presidents will no longer need con- gressional authorization.

Third, <Jnd perhaps most important, the American public and media

have virtually accepted presidents' unilateral usc of force. Practice has led

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 215

most to believe that Congress does not and should not play a significant role

in the process. The media age has contributed to this image by increasing the stature of presidents vis-a-vis Congress. As during the Clinton administra-

tion, Bush's high popularity ratings, which have until recently consistently

been in the 60 percentile, make it unlikely that Congress will challenge him.

Ultimately, presidential war power remains strong and will continue to

remain strong. Presidents will not willingly give up this power, and Congress

is not actively trying to take this power away. Instead of cooperation between

the executive and legislative branches of government, the imperial presi-

dency has triumphed. Presidents increasingly take unilateral steps to involve

the U.S. military in operations abroad and have substituted the United

Nations and international law for congressional sanction of their actions.

NOTES

1. Arthur M. Schlesinger Jr., The Im[Jerial Presidency (Boston: Houghton Mif- flin, 1989), p. viii.

2. Sec James M. Scott, ed., After the End: Making U.S. Foreign Policy in the Post-Cold War World (Durham, N.C.: Duke University Press, 1998); ]ames M. Lind- say, Congress and the Politics of U.S. Foreign Policy (Baltimore: Johns Hopkins Univer- sity Press, 1994); and Randall B. Ripley and )ames M. Lindsay, eds., Congress Hesur- gent: Foreign and Defense Policy in Caflitol Hilt (Ann Arbor: University of Michigan l)ress, 1993 ).

3. This term comes from Richard E. Neustadt, Presidential Power and the Mod- em Presidents: The Politics of Leadershi)J from /{oosevelt to [{eagan (New York: Free Press, 1990).

4. U.S. Congress, I\ej;ort of the Congressional Committees Jm;estigating the Iran- Contra Affair. With sufl!Jlemental Minority, and Additional Views, !OOth Congress, 1st scss. (1987), p. 467.

5. John Tower, "Congress versus the President: The Formulation and Imple- mentation of American Foreign Policy," Foreign Affairs (Winter !981-1982): 229-46.

6. Robert Bork, "Erosion of the President's Power in Foreign Affairs," Wash- ington University Law QWlrterly 68 (1990): 694-701.

7. U.S. v. Curtiss-Wright Exj;ort CorfJ. et al., 299 U.S. 304 (1936). 8. "Authority of the !)resident to Repel the Attack in Korea," De)Jartment of

State Bulletin (July 31, 1950), p. 173. 9. In Jean Edward Smith, George Bush's War (New York: Holt, 1992), p. 227.

10. George Bush, "Remarks at the Texas State Republican Convention in Dal- las, Texas," Public Papers of the President I (June 20, 1992): 995.

11. Articles of Confederation, November 4, 2002, http://encarta.msn.com/enc- net/refpages/RefArticle.aspx ?refid= 76156 722 7&pn= 2#s15 (accessed !?7).

12. James Madison, Alexander Hamilton, and John Jay, The Federalist Paj;ers, ed. Isaac Kramnick (New York: Penguin Books, 1987), p. 402.

13. Sec Article 1, Section 8, of the U.S. Constitution.

216 MICHAEL CAIRO

14. Charles A. Lofgren, "War-Making under the Constitution: The Original Understanding," Yale Law l?eview (March 1972): 685.

15. John Locke, "Of Prerogative," in Two Treatises of Government, cd. Peter Laslett (New York: Cambridge University Press, 1997), pp. 374-80.

16. The Founders Constitution, http://prcss·pubs.uchicago.edu/founders/docu- rnents/92_2_2-3sl4.htrn (accessed October 3, ZOOS).

17. The Founders Constitution, http://press·pubs.uchicago.edu/founders/docu- rncnts/92_2_2-3sl5.hnn (accessed October 3, 2005 ).

18. Talbot v. Seeman, 5 U.S. I ( 1801). 19. Bill Clinton, "Lener to Congressional Leaders on the Strike on Iraqi Intel-

ligence Headquarters," Public Papers of the President (June 28, 1993 ), p. 940. 20. Bill Clinton, "Address to the Nmion on the Strike on Iraqi Intelligence

Headquarters," Public l'a{Jers of the President (June 26, 1993), pp. 938-39. 21. Bill Clinton, "Remarks Announcing a Missile Strike on Iraq and an

Exchange with Reporters," Public Pa}Jers of the President (September 3, 1996), p. 1469. 22. Bill Clinton, "The President's Radio Address," Public Pajx:rs of the President

(September 14, 1996), pp. 1566-67. 23. Madeleine Albright, "Remarks at Tennessee State University," Office of the

Spokesman, U.S. Department of State (February 19, 1998). 24. Madeleine Albright, "Statement before the House lntern<Jtlonal Relations

Committee," Office of the Spokesman, U.S. Department of State (February 12, 1998 ). 25. U.N. Security Co unci! /(esolution 1154, S/RES/1154 ( 1998). 26. Bill Clinton, "Remarks on Signing a Memorandum on Standards to Prevcm

Drinking and Driving," Public Papers of the President (March 3, 1998), p. 317. 27. Bill Clinton, "Address to the Nation Announcing Military Strikes on Iraq,"

Public Papers of the President (December 16, 1998), p. 2182. 28. Bill Clinton, "Letter to Congressional Leaders on the Military Strikes

agamst Iraq," Public Pa}Jers of tile President (December 18, 1998), pp. 2195-96. 29. 1\ichard L. Berke, "Raid on Baghdad," New York Times (June 29, 1993), p.

A7. 30. Osanta bin Laden, Interview with Peter Arnett, CNN, March 1997,

www.anusha.corn/osamaint.htm (<Jccessed January 3, 2003). 31. Bill Clinton, "Remarks in Martha's Vineyard, Massachusetts, on Military

Action against Terrorist Sites in Afghanistan and Sudan," Public l'uj>ers of the President (August 20, 1998), p. 1460.

32. Bill Clinton, "Letter to Congressional Leaders lZcporting on Military Action against Terrorist Sites in Afghanistan and Sudan," Public Fa}Jers of the !'resident (August 21, 1998), p. 1464.

33. See Corwin, The President's Control of Forei[;TI /(elations (Princeron, N.J.: Princeton University Press, 1917), chap. I.

34. George W. Bush, "Remarks by the President after Two Planes Crash into World Trade Center," www.whitchousc.gov (September 11, 2001) (accessed J;muary 3, 2003).

35. George W. i)ush, "President's Remarks at National Day of Prayer and lZcmcmbrance," www.whitehouse.gov (September 14, 2001) (accessed ]<muary 3, 2003).

36. U.N. Security Councill~esolution 1368, S/lU;~S/1368 ( 2001 ).

THE "IMPERIAL PRESIDENCY" TRIUMPHANT 217

3 7. U.N. Securit)' Council Resolution 1373, S/RES/1373 (2001 ). 38. www.usinfo.state.gov (October 7, 2001) (accessed AprilS, 2003). 39. Donald 1-1. Rumsfcld, lnceroiew with Wolf Blitzer, CNN, October 28, 2001.

Available at www.defenselink.mil/news (accessed October 28, 2001 ).

40. Donald H. Rumsfeld, Hemarks outside ABC-TV studio, October 28, 2001. Available at www. Defenselink.mil/news (accessed October 28, 2001 ).

41. George W. Bush, "Address before a joint Session of the Congress on the State of the Union," Weekly Compilmion of Presidential Documents 38 (January 29, 2002), p. 135.

42. The National Security Strategy of the United States of America, September 21, 2002, www.whitehouse.gov (accessed January 3, 2003).

43. National Security Strategy. 44. National Security Strategy. 45. National Security Stratel,ry. 46. George W. Bush, "Address to the United Nations General Assembly in

New York City," Weeki)' ComjJilation of Presidential Documents (September 13, 2002), pp. 1529-30.

4 7. Bush, "Address to the United Nations," p. 1530. 48. Bush, "Address to the United Nations," pp. 1531-32.

49. U.N. Security Council Resolution !441, S/RES/1441 (2002). 50. George W. Bush, "Remarks to the Troops at Fort Hood in Killeen, Texas,"

Weekly ComJJilation of Presidential Documents (January 3, 2003 ), pp. 24-25. 51. George W. Bush, "Address before a Joint Session of the Congress on the

State of the Umon," Weekly Compilation of Presidential Documents (] anuary 31, 2003 ), p. 116.

52. George W. Bush, "Remarks on the Iraqi Regime's Noncompliance with

United Nations Resolutions," Weekly Compilation of Presidential Documents (February 6, 2003), pp. 164-65.

53. George W. Bush, "President Hush Addresses the Nation," Lexington Herald- Leader (March 20, 2003), p. A13.