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Almon Leroy Way, Jr.
A. THE WAR POWERS--PUBLIC DEBATE & CONTROVERSY
One impact the Kosovo crisis and the American-led NATO military intervention into the Yugoslav conflict has been revival of public debate and political controversy within the U.S.A. over the proper and legitimate exercise of the national government's war-making powers under the United States Constitution. As was the case in the late 1960s and early 1970s, during the period of direct, massive, and escalating U.S. military involvement in the Vietnam War, politically influential individuals and groups within American society are questioning the constitutionality of the nation's participation in an undeclared war abroad. During the 78-day period of NATO's air strikes in Yugoslavia, highly articulate voices began to be heard insisting that, in the absence of a congressional declaration of war or an overt foreign military attack on the territory or military forces of the U.S.A., a presidential decision to commit American troops to a foreign war is a violation of the United States Constitution. Antiwar voices, emanating mainly from the political Right (rather than from the political Left, as was the case during the Vietnam War), asserted that, since President William J. Clinton's involvement of the U.S. Armed Forces in the Kosovo crisis and the aerial bombing campaign over Yugoslavia is unconstitutional, Congress should oppose and block further implementation of Clinton's military policy in the region, making use of the War Powers Act of 1973 to compel the President to withdraw American military forces from the Balkans and bring the troops back home. At the same time they were urging congressional action along these lines, opponents of the President's military policy were also seeking to pursue in the U.S. Courts a constitutional challenge to the President's involvement of the U.S.A. in the Balkan war, hoping to get the case heard by the Supreme Court and obtain from it a clear and unambiguous ruling that presidential war-making in foreign regions without congressional authorization is unconstitutional and null and void.
Public controversy over the war powers of the national government and over which branch of government, legislature or executive, may legitimately (i.e., legally, or lawfully) exercise these powers is a recurring theme in American political and constitutional history. Committing American forces to military conflict abroad has always stimulated political and legal controversy over which governmental branch has the constitutional authority to make such a commitment. What are the reasons for this? One reason is that, in the arena of American partisan political rivalry, no governmental function is sacred and above the rough and tumble of partisan politics and, therefore, professional politicians have a very strong tendency to "play politics" in taking public positions on matters of national defense and security. A second reason, much more important and fundamental, is that, under the U.S. Constitution, both Congress and the President possess powers which can be construed as controlling the comitment of troops to armed conflict. The Constitution does not lodge the war powers in a single organ or branch of the national government; instead, its grants some of these powers to Congress and others to the President.