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Can the President Bomb Anyone He Wants?

Bruce Gottlieb
Posted Thursday, Aug. 27, 1998, at 5:43 PM ET

Last week President Clinton ordered cruise missile strikes against Sudan and Afghanistan. Is there any legal limit on the president's power to drop bombs on foreign countries? Answer: In theory there might be limits imposed by international law, by domestic law, and by the U.S. Constitution. In practice there are more or less no limits.

The United Nations charter purports to ban military aggression by one country against another. Since the U.N. Charter is a treaty which was ratified by the Senate, it is U.S. law as well and the president is bound by its terms. But Article 51 of the U.N. charter makes an exception for the "inherent right ... of self-defense if an armed attack occurs." The U.S. claims that terrorists like Osima bin Laden are, in effect, waging war against the U.S. and the bombings are an act of self-defense. Most international law experts think the self-defense argument is watertight in this case. But the U.S. has invoked Article 51 in virtually all military actions of the past half-century, in many of which the claim of "self defense" was a bigger stretch.

But the U.S. Constitution gives Congress the authority to "declare war." Isn't dropping bombs on two foreign countries "war"? Some international law experts maintain that it isn't. In fact, rightly or wrongly, the practice of declaring war has virtually disappeared. Among the arguments made for ignoring this constitutional requirement: It says declare war, not make war. (Counterargument: If you can make war without declaring it, the provision is meaningless, which constitutional provisions are not supposed to be.) It is impractical in the age of terrorism, transcontinental missiles and nuclear weapons. (Counterargument: Then repeal it, don't ignore it.) It doesn't apply to this or that special case. (Counterargument: Yes it does.) The Constitution also says the president is the "Commander In Chief." (Counterargument: military commanders don't get to start wars.)

The War Powers Act of 1973 requires the president to consult with Congress "in every possible instance" before introducing troops into "hostilities" and says he must withdraw forces after 60 to 90 days unless Congress says differently. Critics at the time (during Vietnam) argued that it unconstitutionally gave the president too free a hand to get America into a "quagmire." In the 1980s, critics made the opposite argument: that the act unconstitutionally limited the president's freedom to initiate military action as "commander in chief." In any case, the act does not limit a one-day bombing strike.

National Security Adviser Sandy Berger also cites a 1996 congressional statute empowering the U.S. to use all necessary force against terrorists.

In short, neither international law nor U.S. law, as currently interpreted, imposes any serious limit on a president who wishes to bomb a foreign country.

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Bruce Gottlieb is a law student and a former Slate staff writer.
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