INTRODUCTION I. WARS ON FLAWED FACTS II. CONGRESS'S RESPONSIBILITY TO CLARIFY UNCERTAINTY AT THE THRESHOLD OF WAR A. Uncertainty: Past Events and Future Contingencies B. Have We Met the "Enemy"? How Do We Know? CONCLUSION INTRODUCTION
When the current phase of our conflict with Iraq began in March 2003, much was unknown. Our political leaders based the case for war on the conviction that Iraq possessed weapons of mass destruction (WMD) that had not been eliminated despite twelve years of grinding sanctions. Congress voted in October 2002 to authorize renewed use of military force against Iraq, (1) acting on the basis of representations by the Bush Administration that Iraq had been actively concealing WMD stockpiles and programs from the United Nations inspectors who had a mandate to verify the complete destruction of Iraq's WMD capability. Facts were alleged; evidence was proffered; inferences were drawn from the record, or from Iraq's failure to rebut what the record seemed to show.
The factual premises for this war turned out to be, in a word, mistaken. Whether the case was overstated, misstated, knowingly misrepresented, or deliberately falsified was a point of debate in the campaign season of 2004.
The tale is dismaying but all too familiar. We can recognize a pattern established by the Mexican-American, Spanish-American, and Indochina Wars: The President of the United States goes to Congress with an assertion of an outrage that cannot be ignored and that requires a prompt and decisive forcible response. Congress accepts the Executive's claim without much inquiry into whether the factual premises are well founded and approves the initiation of combat. War ensues; the world is transformed; the facts, however, turn out to be different from how they were portrayed when Congress acted.
John Hart Ely grappled with this recurrent feature of American warmaking in his elegant book War and Responsibility. (2) For Ely and his generation, the searing conflict was Indochina. Ely strove, through meticulous reconstruction of what was known at the time and what became known later, to lay bare the failures of all three branches of American government and to prescribe structural reforms to prevent their tragic repetition. Above all, he stressed that Congress has the constitutional responsibility to determine whether to go to war, and he called on Congress to exercise that responsibility prudently, with investigation as appropriate into the factual predicate on which the Executive makes the case for war:
It was Congress's job not simply to insist on getting the facts straight before giving the president a functional declaration of war, but also to decide for itself just how great an emergency there was. That's why we have separate branches. That's why the war power is vested in Congress. (3) Ely's treatment of congressional responsibility in the context of the Indochina War holds much wisdom for the recent Iraq conflict and the war with al Qaeda.
Another lens through which to view congressional responsibility at the threshold of war is the problem of the interaction between Congress and the judiciary. In War and Responsibility, as in his chef-d'oeuvre, Democracy and Distrust, (4) Ely saw the judicial role as enhancing the ability of the legislative branch to carry out its own constitutional duties. While Democracy and Distrust emphasizes the judicial role in correcting process failures that interfere with democratic politics, the thesis of War and Responsibility is that the judicial branch must become an instrument for "inducing Congress to face up to its constitutional responsibilities." (5) Ely envisioned that the courts could properly instruct Congress on the existence of factual circumstances triggering Congress's duty to vote on whether to authorize military action. He called this trigger a "judicial 'remand' as a corrective for legislative evasion." (6) I am in general agreement with Ely that war powers disputes can entail justiciable elements and that judicial determinations of trigger points for congressional action could in principle be constitutionally proper. (7) My concern here, however, is not so much with a potential judicial role in inducing Congress to overcome its tendency not to act, but rather with those rare but fateful instances when Congress has indeed voted to approve military action. There seems little room for judicial oversight of war initiation once Congress has explicitly authorized war. Even if Congress acted on the basis of a mistaken fact, such failures of responsibility would find no judicial corrective.
I propose to build on Ely's concern with Congress's duty to investigate the factual predicate for going to war in circumstances of uncertainty. My main themes are that Congress should exercise its constitutional power to decide for war with the fullest feasible understanding of policy-relevant factual context, but that the contextual investigation that Congress should undertake in order to determine whether to authorize military conflict should not be confused with a kind of incident-specific fact-finding that Congress is ill suited to perform. Congress has a bad track record in establishing (or rather, speculating about) the facts of specific situations at the threshold of war. In circumstances of uncertainty, Congress's job is not a forensic one of ascertaining historical truth, but rather one of assessing the justifiability of present and future military action in evolving conditions. This necessarily forward-looking inquiry should specify the parameters of such uncertainties as are likely to become relevant to presidential action within the broad policy contours established by Congress.
Uncertainty about the future is inevitable when war looms. In this context I explore Ely's insistence that part of Congress's constitutional responsibility is to determine specifically who "the enemy" is, (8) even when the factual picture of that enemy is murky, as it was in Indochina and as it is again in the war against the invisible perpetrators of the attacks of September 11, 2001. While I endorse Ely's general propositions about congressional responsibility for war-and-peace decisionmaking, I offer a somewhat different approach to the roles of Congress and the President once Congress has established policies for future execution. Congress, as the constitutionally proper organ to specify the policy determinants of prospective military action, can leave it to the President to make future judgments about whether particular factual conditions for initiating military action have been met.
WARS ON FLAWED FACTS
Only nine times has Congress acted with bright-line clarity to authorize initiation of major combat. In addition to five instances of the war-declaring mode of Article I, Section 8, Clause 11 of the Constitution--the War of 1812, the...