As usual, Michael Kinsley is worth reading. He asks some very good questions about Bush’s authority to use force in these circumstances. As I’ve noted many times, I agree with Kinsley that presidents sending troops to war in situations like these, where the deliberations were long enough that Congressional declaration of war is certainly feasible, violates the plain meaning of the Constitution. But, like Kinsley, I acknowledge that Congress’s war power has become a practical dead letter in recent decades. As I’ve also noted before, Congress did overwhelmingly authorize Bush to use force in this case last October. It wasn’t a formal Declaration of War, but since both can be done by a simple majority of both Houses of Congress, I’m not sure what practical difference there is. It is certainly more congressional input than Clinton sought for his many misadventures.
Less interesting, to me, is Kinsley’s international law argument:
Bush is asserting the right of the United States to attack any country that may be a threat to it in five years. And the right of the United States to evaluate that risk and respond in its sole discretion. And the right of the president to make that decision on behalf of the United States in his sole discretion. In short, the president can start a war against anyone at any time, and no one has the right to stop him. And presumably other nations and future presidents have that same right. All formal constraints on war-making are officially defunct.
Well, so what? Isn’t this the way the world works anyway? Isn’t it naive and ultimately dangerous to deny that might makes right? Actually, no. Might is important, probably most important, but there are good, practical reasons for even might and right together to defer sometimes to procedure, law, and the judgment of others. Uncertainty is one. If we knew which babies would turn out to be murderous dictators, we could smother them in their cribs. If we knew which babies would turn out to be wise and judicious leaders, we could crown them dictator. In terms of the power he now claims, without significant challenge, George W. Bush is now the closest thing in a long time to dictator of the world. He claims to see the future as clearly as the past. Let’s hope he’s right.
Even side from the surreal analogy about killing babies in their cribs, Kinsley’s argument is odd. For one thing, he overlooks a rather obvious constraint on presidential uses of force: Presidents are elected. Surely, we’re not going to elect presidents bent on conquering the world? Secondly, the number of rogue regimes with weapons of mass destruction is small. One would hope our actions in this case would encourage the others to be rid themselves of those weapons. Or encourage their citizens to revolt. And, frankly, even if there are two or three more wars such as this to topple “the worst regimes with the worst weapons,” would that be such a bad thing? The world has indeed changed dramatically. 9/11 itself wasn’t the change, but brought it into stark view. A world where third-rate dictators or well-funded terrorist groups can easily strike and harm US interests in a massive way requires different rules than one in which only great powers are a threat.