The plaintiffs in John Doe v. President George W. Bush had their day in court -- actually, 50 minutes -- this past Monday. That's how long oral argument lasted in U.S. District Court in Boston in a case that raised the question of whether Congress must formally declare war before Bush can lawfully attack Iraq.
Following oral arguments, Judge Joseph L. Tauro called a recess to decide if he should grant a preliminary injunction to bar Bush from going to war, as the plaintiffs had requested. The judge didn't need much time. An hour later, he returned to his white-walled, 7th floor courtroom and read aloud an abbreviated version of his opinion -- denying the injunction and dismissing the suit. He said that it raised "political questions," which were "beyond the authority of a federal court to resolve."
Well, not entirely. The plaintiffs have appealed to the U.S. Court of Appeals for the First Circuit, which has scheduled a hearing for Tuesday. But it's highly unlikely that the plaintiffs -- three U.S. soldiers identified as John Does, the parents of three others and 12 members of Congress -- will prevail on appeal.
Although no judicial remedy is likely to be forthcoming, the case raises the larger question of whether the Bush administration is flouting the original intent of Section 8, Article I of the U.S. Constitution -- which says, simply, that "Congress shall have Power . . . [t]o declare War."
Its purpose is manifestly evident. Wars are not to be entered into lightly, wrote U.S. Supreme Court Justice Joseph Story in 1833, commenting on Section 8. Wars require "the utmost deliberation, and the successive review, of all the councils of the nation," he said.
Except in a military emergency, in which the nation must act quickly to repel an attack, the constitutional framework is intended as a check on the executive's war-making powers. If Section 8 means anything, it means that a president may not launch a major war until Congress clearly authorizes the extraordinary step of commencing hostilities against another nation and putting the lives of American men and women at risk.
A line of modern-day cases decided in federal court recognizes certain acts by Congress as the "functional equivalent" of a declaration of war, to use a term coined by acting attorney general Nicholas Katzenbach during the Vietnam War. The cases have had the effect of muddying what once was a clear-cut division of war-making responsibility between the executive and legislative branches.
According to Justice Department lawyers who represent the Bush administration in the John Doe case, the functional equivalent of a war declaration is present in a resolution that Congress adopted on Oct. 16, 2002. That resolution gave the president authority to deploy U.S. armed forces against Iraq "as he determines necessary and appropriate." Administration lawyers argue that it therefore satisfies any requirement for a war declaration that the Constitution requires.
But other language in the resolution limits Bush to ordering only military actions to "defend U.S. national security" and -- not or but and -- "enforce United Nations resolutions regarding Iraq." And therein lies the crucial ambiguity.
Congressional advocates of the resolution did not present it purely as a mandate for war. They sold it also as a lever Bush could push in working for tough United Nations measures that might force Saddam Hussein to disarm and thereby avoid war. Some members of Congress, such as Sen. John Kerry (D-Mass.), thus maintain that they supported the October resolution while opposing a war unless the United Nations authorizes it.
That position is embodied in the October resolution, according to John C. Bonifaz, a lawyer who represented the plaintiffs at the Boston hearing. United Nations approval, he said, was "a condition before the president goes to war." If Section 8 requires a clear declaration of war -- and Bonifaz made a good case that it does -- the October resolution does not appear to provide it.
Still, in Tauro's view, even silence by Congress in the face of a war would not warrant judicial intervention. Before a court should assume jurisdiction to regulate the war-making roles of the executive and legislative branches, the judge said, those roles must reach "the point of clear and resolute conflict."
Thirty years ago, Tauro presided over the similar case of Drinan v. Nixon. Then the war in question was the one in Vietnam. Relying on Section 8 and maintaining that the American aerial bombing campaign of North Vietnamese supply routes in Cambodia was not constitutionally authorized by Congress, an Air Force airman and four members of Congress demanded an injunction to stop it. Tauro's dismissal of the case was upheld by the Court of Appeals.
A court decree that had the effect of allowing the Vietnam War to continue may have value as a legal precedent. Indeed, Tauro cited the earlier case in his John Doe ruling. But the legal system's hands-off approach to the war-declaration requirement during Vietnam -- and now in the case of Iraq -- sends a falsely reassuring message. It is a disservice to the crafting of wise public policy, as it says nothing about the pitfalls of disregarding the constitutional safeguard against a president's unchecked war-making power.
A statement released by Attorney General John Ashcroft hailing Tauro's ruling this week seemed to encapsulate the misguided concept that Congress need have little role in authorizing war. "The President has broad powers as commander-in-chief of the Armed Forces to determine when to use force to defend the national security of the United States," Ashcroft crowed.
Though the Vietnam War lasted more than a decade and resulted in the death of almost 59,000 Americans in uniform, Congress never formally declared war. The supposed "functional equivalent" of a war declaration was the Gulf of Tonkin resolution, which Congress hastily adopted on Aug. 7, 1964.
That resolution contained vague language not unlike the wording of the October resolution on Iraq. It declared that the United States was "prepared, as the president determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty."
Congress was responding to reports from President Johnson's aides about incidents of North Vietnamese aggression against U.S. warships. Only years later did the truth emerge: The alleged attacks were grossly exaggerated and in any event were provoked by unlawful, U.S.-supported South Vietnamese raids against Communist targets.
Once U.S. armed forces were enmeshed in Southeast Asia, Congress closed ranks behind Johnson in a display of patriotic solidarity typical of wartime. It took almost seven years for Congress to repeal the Gulf of Tonkin resolution -- and even after that, the war dragged on.
The Vietnam episode made a mockery of congressional war-making powers. Congress did not wittingly sign on for the large-scale war that Johnson and Nixon prosecuted. The Constitution was thwarted. And the nation -- which did not benefit from the kind of deliberative review and testing of public support that the framers of the Constitution envisioned before the United States initiated war -- was ill-served.
One of the lessons of Vietnam was that a sharply divided nation should never take on armed conflict. That's why the framers gave Congress, not the president, power to declare war. Conservatives are fond of invoking the wisdom of the "original intent" of the framers of the Constitution. This is one case where we have a pretty clear idea of both what that original intent was and what it requires of the executive branch today. Bush may claim to be a constitutional originalist -- but evidently, when war is at stake, he is a selective one.
Joseph Rosenbloom is a Prospect contributing editor.