Considering the fact that the Bush Administration is the planet's primary proponent of war with Iraq, Nancy Lessin wants to know why the US Congress has failed to follow the example of parliaments around the world that are debating whether a war is necessary.
"When we look at the world community, we see that they had a debate in the Parliament of Turkey. They had a debate in the Parliament of Great Britain. They are having serious debates in legislative bodies all over the world, and yet there is no debate in Congress," says Lessin, the mother of a 25-year-old Marine who has been dispatched to the Persian Gulf.
Lessin and other parents of troops serving in the Gulf have joined US soldiers and a dozen members of Congress as plaintiffs in a lawsuit that seeks to bar President Bush from ordering an attack on Iraq without a Congressional declaration of war. "If the rest of the world can debate this war, then America can as well. Our Constitution requires that debate," says Lessin, the Massachusetts AFL-CIO's health and safety coordinator, whose son Joe is among the almost 300,000 US troops who have already been sent to the Gulf. "If the President starts this war without a declaration from Congress, he will violate the Constitution. And I do not want our troops being ordered to fight an unconstitutional war."
On Tuesday, Lessin sat in a federal courthouse in Boston, where a three-judge panel of the US Court of Appeals for the First Circuit heard arguments regarding the suit that she sees as an essential step in reasserting democracy in America. The lawsuit, which is the premier legal challenge to the President's authority to wage war against Iraq, looked to be going nowhere when it was dismissed by Federal Judge Joseph Tauro in mid-February. But the plaintiffs' lead attorney in the case, Boston lawyer John Bonifaz, filed a successful motion for expedited review before the appellate court. On Tuesday, Bonifaz faced off against top lawyers for John Ashcroft's Department of Justice before Judges Sandra Lynch, Conrad Cyr and Norman Stahl.
This time, the case was not dismissed. Bonifaz argued that an invasion of Iraq without further action by Congress would violate Article I, Section 8 of the United States Constitution, which states that "Congress shall have Power...[t]o declare War." He explained that the October resolution on Iraq that was passed by the House and Senate had failed to declare war and, in fact, had unlawfully ceded to the President the authority to decide whether to launch an invasion of Iraq.
"We are not saying that the war cannot occur if Congress declares it. Our position is that the Constitution requires the President to go to Congress before launching a premeditated, first-strike invasion of another country," explains Bonifaz. "This is precisely what the framers of the Constitution intended to prevent. They placed Article 1, Section 8 in the Constitution to assure that the President of the United States would not have the power that European monarchs had held in the past in matters of war and peace."
In a marked departure from the February appearance before Judge Tauro, Tuesday's appearance before the three-judge panel saw this argument treated with respect and a reasonable level of interest by at least two of the jurists. "Clearly the court understands the gravity of the issues being put before it," said Bonifaz. "I think we have strong arguments and I think the judges want to hear them."
Indeed, rather than dismiss the case as Tauro did, the judges asked Bonifaz and the lawyers for the Justice Department detailed questions, and then ordered both sides to submit briefs by next Tuesday.
Is it still a long shot to expect a federal appeals court to issue an order blocking a war? Absolutely. If history is any indication, the courts cannot be counted on to get in the way of presidential war-making. During the Vietnam War and in the run-up to the first Persian Gulf War, federal courts found various arguments for rejecting similar suits. But Bonifaz believes that the Bush Administration's failure to get a declaration of war--and the confusion over whether members of Congress intended for the President to get a clear go-ahead from the United Nations--creates an opening that may not have existed in the past.
"It was clearly the intent of the founders that there be a Congressional declaration of war before this country invaded another. We are now at the point where an invasion appears imminent, yet we have not had the declaration. This is exactly the point where the court should intervene and say George Bush must obey the Constitution," says Bonifaz. "Saddam Hussein can, on his own volition, send troops into Kuwait. President Bush does not have the power to send troops into Iraq. We have a different system, and it is right to ask that that system be allowed to work."
That argument has won support in legal circles. Several dozen law professors from across the country have signed onto a brief supporting the suit. And US Representative John Conyers from Michigan, the ranking Democrat on the House Judiciary Committee, who is one of the Congressional plaintiffs, says, "President Bush recently told journalists that whether we go to war 'is not up to you, it's up to me.' The Founding Fathers did not establish an imperial presidency with war-making power. The Constitution clearly reserves that for Congress."
As the appeals court weighs the case, some members of Congress are moving to reassert their authority. While the Republican and Democratic leadership in the House and Senate continue to avoid dealing with the constitutional issues raised by the Administration's rush to war, a growing number of members in both chambers have begun to advance legislation that seeks to slow that rush. To wit:
* The senior Democrats in the Senate, Robert Byrd of West Virginia and Edward Kennedy of Massachusetts, have co-sponsored a resolution that calls on the Bush Administration to continue support of United Nations weapons inspections in Iraq and that expresses the sense of the Senate that the President must return to Congress for a second vote before initiating the use of force.
* Representative Peter DeFazio, a Democrat from Oregon, and Representative Ron Paul, a Republican from Texas, have sponsored a bipartisan proposal to repeal last October's "Authorization for Use of Military Force Against Iraq Resolution of 2002." The legislation has attracted thirty-two co-sponsors, including Conyers, Congressional Progressive Caucus co-chairs Dennis Kucinich, Democrat from Ohio, and Barbara Lee, a California Democrat; and US Representative Barney Frank, Democrat from Massachusetts.
* Representative Sherrod Brown, a Ohio Democrat who opposed the October resolution, has been joined by two representatives who supported the resolution, Joseph Hoeffel, Democrat from Pennsylvania, and Ellen Tauscher, a Democrat from California, in sponsoring the "Presidential Report on Iraq Resolution of 2003." The legislation would require President Bush to make a public report to Congress on the possible consequences of war with Iraq prior to ordering US forces into such a war. In addition to forcing the President to detail the human, economic, environmental and political costs of a war, the act would require him to submit "a determination that further diplomatic or other peaceful means will not adequately protect the national security of the United States against the threat posed by Iraq."
"Based on the President's recent remarks that Iraq has 'weeks, not months' to disarm, it would seem that war is imminent. However, many important questions remain unanswered, such as how this war will affect the war on terrorism, the proliferation of weapons of mass destruction, the security of America, and the US economy," Brown, Hoeffel and Tauscher wrote in a letter seeking co-sponsors for their measure. "In addition to these important strategic questions, the Administration has not adequately presented to Congress or the American people a comprehensive plan for dealing with a postconflict Iraq. Successful stabilization and reconstruction of Iraq, as well as a quick response to humanitarian needs, is vital for achieving our goal of reducing the risk of terrorism and the deployment of weapons of mass destruction. An incomplete reconstruction of Iraq could have terrifying consequences if it results in renewed Al Qaeda recruitment or destabilization of regional nations such as Pakistan. By all accounts, the true challenge of action against Iraq will not be the military invasion, but rather the long-term effort to instill democracy and minimize anti-American sentiments in the region."
Brown, one of the savviest strategists in the House, is pushing for the report with the obvious intent of forcing a broader debate on the war. "In the absence of a clear, imminent threat to the United States, the President has a responsibility to present to the American public a full assessment of the possible costs and consequences of taking military action against Iraq. The President's most recent report to Congress is woefully inadequate in demonstrating the Administration's preparedness for the uncertainties of an attack on Iraq and its aftermath. At fourteen pages, the report contains less substantive information than what you can buy on the newsstand. The public deserves to hear directly from the President on the implications of his actions in Iraq," says Brown. "Before we start a war that could cost the lives of hundreds of thousands of civilians, the Administration owes the American public a clear-eyed assessment of this war. It would be irresponsible to rush into this conflict without fully acknowledging the potential costs and consequences."
Tauscher, a member of the House Armed Services Committee, was a surprise ally of Brown's. She supported the October resolution, despite a high level of opposition in her San Francisco Bay area district. Now, she says, "People stop me on the street and tell me they believe that the Administration has already decided to use force against Iraq. This widespread belief among the public and our allies is hurting America's credibility and hindering our ability to lead an international coalition to peacefully disarm Saddam. Publicly answering these fundamental questions gives President Bush a chance to turn that around. The United States should not proceed with unilateral or pre-emptive military action in Iraq, but if we do have to go to war to disarm Saddam, Congress needs to be sure there are sensible plans that will not compromise our ability to prosecute the war on terror elsewhere or further destabilize an already volatile region."
Hoeffel says he is particularly disappointed by suggestions from the Bush Administration that an American civil authority would unilaterally govern Iraq. "That," says Hoeffel, "smacks of colonialism."
The willingness of some in Congress to demand a debate is reassuring to Nancy Lessin, who is frustrated by the failure of the White House and leaders in the House and Senate to take seriously the dictates of the Constitution. As the mother of a Marine who would fight the war and an activist with the group Military Families Speak Out, Lessin says she is certain that the best way to support the troops is to demand that Congress take seriously its constitutionally defined responsibility to debate whether the US should go to war. "The men and women who have already been assigned to the Persian Gulf are doing a job," Lessin says. "They do not write their job description. Their job description is written in Washington, DC. The decision on whether to go to war is a political decision. We see it as our duty to make sure that the job description does not involve invading Iraq. But even if members of Congress do not share that view, they have a duty to hold a debate and to vote on whether to declare war. They swear an oath to uphold the Constitution, and we are demanding that they obey that oath."