Now what is specifically wrong? First, Lederman's view of the Clinton Administration's stated view on the war power is simply not supported by the evidence. For example, he cites Haiti. Was Haiti a war? Or even a military skirmish? Of course it was not. I see no relevance in Haiti.

Interestingly, Somalia, not cited by Lederman, is a more interesting exercise. It was not initiatated as a military conflict mission. Though it clearly became one. What happened on Somalia? This:

American troops were still in Somalia in October 1993, having undergone even more significant "mission creep" without the benefit of specific congressional authorization or much attention from the public, until the tragic day when eighteen Army Rangers lost their lives in an armed confrontation with one of the Somali factions.47 Congress soon mobilized itself to pass a measure cutting off funding for the deployment in Somalia as of March 31, 1994.48 President Clinton, however, had already made a preemptive announcement of his intention to withdraw the troops by that date, so he could hardly complain that Congress acted unconstitutionally in exercising its power of the purse to the same effect.49 The troops were indeed withdrawn by the cut-off date. Later, in reaction to the Somalia experience, Congress imposed new reporting and consultation requirements for prospective U.S. involvement in U.N. peacekeeping operations.

I think this captures a great deal of the confusion on this subject, evidenced today when Congress enacting troop caps is discussed.

Was the introduction of forces into Somalia on a humanitarian mission a military conflict subject to the Congress' war declaration power? I certainly do not think so.

The next question is did it become a reportable deployment under the WPA? Maybe. Does that mean Clinton broke the law by not reporting? Maybe. But this is certainly not relevant to Bush's power to start a conflict with Iran.

I think the Bosnia deployment also falls into this category - not a military situation subject to the Congress' war power and arguably subject to the WPA. Again, not relevant to the Iran situation today. Though the reliance on the NATO Treaty by Clinton IS significant as we shall see when we discuss Kosovo.

But it does shed light on the utter incoherence and inconsistency exhibited by Walter Dellinger in his statements on the Commander in Chief power. As I have said, you can keep Walter Dellinger, who now says Congress CAN dictate the number of troops in an operation but when serving Clinton wrote:

It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces. . . . In the present context, the President may determine that the purposes of a particular U.N. operation in which U.S. Armed Forces participate would be best served if those forces were placed under the operational or tactical control of an agent of the U.N., as well as under a U.N. senior military commander who was a foreign national (or U.S. national who is not an active duty military officer). Congress may not prevent the President from acting on such a military judgment concerning the choice of the commanders under whom the U.S. forces engaged in the mission are to serve.67

You'll excuse me if I do not take Walter Dellinger seriously in this matter.

But to the heart of the matter. There are two actions by the Clinton Administration that are relevant to the Iran sitution: the bombing of Sudan/Afghanistan and Kosovo.

What happened in the Sudan/Afghanistan situation in 1998? This:

In August 1998, President Clinton ordered cruise missile attacks against a pharmaceutical plant in Sudan that was alleged to be a chemical weapons facility and against sites in Afghanistan identified as terrorist training camps.69 The rationale for the attacks was intelligence information indicating that the sites were part of a terrorist network connected with Usama bin Laden, who was alleged to be the sponsor of the bombings of the U.S. embassies in Kenya and Tanzania that had taken place earlier the same month.70 The President's letter to congressional leaders, comparable to those of his predecessors concerning counterterrorist actions, recites, "I directed these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."71

Attacking those who attacked us, whether the Sudan factory was indeed operated by Al Qaida, seems not to run afoul of the Constitution to me. Did it require Congressional authoorization? I think this is clearly one of the situations where the President can act without specific Congressional approval. I have not heard anyone suggest otherwise.

And this is unlike Iran, which has NOT attacked the United States in any way. Except, allleges the Bush Administration, in Iraq, through supplying Shiite militias. Which brings me to my refrain, want to stop war with Iran, end the war in Iraq.

So what's left? The Kosovo conflict. This is truly the event that needs a careful review for it is the one which might most mirror Iran. What happened on Kosovo?

On March 24, 1999, NATO airstrikes began against the Federal Republic of Yugoslavia (Serbia and Montenegro) in an effort to interrupt the brutal campaign of "ethnic cleansing" being waged by Serb forces against the Kosovar Albanians.72 This was a far more substantial use of military force than in previous deployments (Somalia, Haiti, Bosnia-Herzegovina) that had at least initially been characterized as not intended to result in combat. In Kosovo, the combatant posture was undeniable, yet the Clinton Administration couched its formal submissions so as to avoid an explicit acknowledgment that either "hostilities" within the meaning of the War Powers Resolution or "'war' in the constitutional sense" was involved.

But that does not answer our question, what was the Clinton theory of authority to engage in the Kosovo conflict? He pointed to his power as Commander in Chief AND to Congressional support? Was the support consistent with the WPA? No. Was it consistent with the Constitution? Probably not. Abraham Sofaer describes it thusly:

On March 23, 1999, the day before President Clinton approved the use of force in Kosovo, the Senate adopted a resolution authorizing “air operations and missile strikes” in cooperation with NATO against Yugoslavia. On March 24, the same day the President acted, the House of Representatives adopted a resolution supporting U.S. armed forces “engaged in military operations against the Federal Republic of Yugoslavia.” Different resolutions, yes, but both supportive of military action after a full understanding of the relevant facts.

Then, on March 26, the President reported to Congress under the WPR that he had authorized U.S. forces to join in “Operation Allied Force.” This was in conjunction with NATO’s decision in response to Milosevic’s effort to cleanse Kosovo of Albanians. The decision expressly took into account the views and support of Congress.

Here was the President telling Congress: “I appreciate the support of the Congress in this action.” Congress did nothing to question, let alone challenge, this implicit characterization.
On April 7, the President sent an additional extensive report to Congress, in which, among other things, he promised to continue the war to the end.

In his report, the President also said that the United States was bombing Yugoslavia and would continue bombing until victory was achieved. However, he did not know when the war would end.

In effect, the President was indicating both that he intended to continue bombing until the war ended, and that the process could take more than sixty days, a period beyond the limit set by
Congress under the WPR for a military action conducted without specific, legislative approval.

On April 28, four votes took place in the House related to the legality of the war in Kosovo. A declaration of war was defeated. The House was evenly divided on whether to reject or support Senate Resolution 21. Then, the House passed a bill against the use of ground troops, not against using troops in general, or planes, but against ground troops. Finally, one month later, on May 20, while the bombing was still going on and before sixty days had run (i.e., while the WPR still implicitly authorized the President to act), both houses of Congress passed a supplemental appropriation bill paying for “Operation Allied Force,” and stating that Congress desired a report from the Department of Defense about the operation since its inception on March 24. In this legislation, Congress authorized and directed payment of billions of dollars to support the war.

Does this make Kosovo legal? Constitutional? I think one of the ignored points is whether the war consistent with the NATO Treaty. Why? Because if it was, would that not constitute the constituional authority needed? Treaties ratified by the United States have the force of law. Noam Chomsky said that the Kosovo action did not comply with the NATO Charter:

NATO at least has the advantage of being pretty much under US domination. Within NATO there are differences of opinion, so when there was a question last September of sending unarmed NATO monitors into Kosovo, every NATO country (with the possible exception of Britain) wanted the operation authorised by the UN Security Council as is required by treaty obligation. But the US flatly refused. It would not allow the use of the word "authorise". It insisted that the UN has no right to authorise any US action. . . .

Could Chomsky possibly be right? Was UN Security Council approval required? At first blush, the idea is preposterous. NATO was formed as a defense against the Soviet Union, a permanent member of the UN Security Council. To give your enemy a veto over your actions seems unlikely. But let's take a look at the key provisions of the NATO Charter:

Article 3

In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.

Article 4

The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.

Article 5

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .

Article 6 (1)

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

* on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France (2), on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;

* on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

Article 7

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.

Well it is clear that Chomsky is wrong in his blanket statement but could be right in his specific argument here. He would rely on Article 7. The counterargument relies principally on Articles 3 and 4 in my opinion. Article 5 speaks of response to an attack. But Article 5 is not limiting, it is a mandatory call for use of force collectively.

A close call no question. Gray is the best that can be said for the legality of the Kosovo action.

Gray is not Iran. As I have argued, the Bush Administration has no legal ground to start a conflict with Iran other than through a pretext in Iraq.

But the legal analysis is not the practical analysis. We must get out of Iraq. To stop war in Iran, we must get out of Iraq.