It is inarguable that NATO’s bombing of Yugoslavia — provoked by atrocities in a civil war in a sovereign nation that has not attacked any NATO member — is hard to square either with the United Nations Charter or with the 1949 treaty that created NATO itself.
     
But for Americans, there is a more fundamental question: Can it be squared with the Constitution?

That document reserves the power "to declare war" to the Congress. And although the meaning of this phrase has evolved over time, the framers clearly intended to bar Presidents from doing what President Clinton has done: sending U.S. forces into hostilities abroad without explicit votes of approval from both House and Senate.

(The Senate, in a nonbinding vote on March 23, approved U.S. participation in NATO "military air operations and missile strikes"; the House, in a March 11 vote, authorized only a "peacekeeping operation, implementing a Kosovo peace agreement," which later fell through.)

These problems have received little attention because of an ever-more-pervasive assumption: that the original understandings of the Constitution, the U.N. Charter, and the North Atlantic Treaty are anachronisms, and that these legal texts should be stretched, twisted, or even ignored as necessary to cope with today’s exigencies.

My colleague Clive Crook, for example, noted in his April 10 column that "NATO’s actions are illegal both under the terms of the U.N. Charter and according to the alliance’s own rules" — only to add that this was not a good reason to let "the slaughter of the Kosovars proceed."

This makes sense both because hardly anyone treats as binding the tattered set of treaty rules that we call "international law," and because these rules have not caught up with the emerging consensus that war may sometimes be a moral imperative to stop the slaughter of innocents — even within sovereign borders.

But I also agree with the cogent arguments of Rep. Tom Campbell, R-Calif., that the President should have complied with the Constitution by seeking congressional authorization for his war plans, and that he should end U.S. involvement unless Congress approves it.

To dramatize the yes-or-no choice that Congress has a duty to confront, Campbell has introduced one resolution (which he opposes and which he designed to fail) that would declare war on the Serbs and another (which he supports) that would require withdrawal of U.S. forces.

Unlike Campbell, I lean to the view that Congress should authorize the President to carry this war through to victory, by (at a minimum) returning the Kosovar Albanian refugees to their homeland and protecting them against the Serbs.

But whatever Congress may decide, Campbell is right to press to reclaim its almost-abandoned power to decide when the United States should go to war. There are three overlapping reasons: 1) Compliance with the Constitution should not be optional; 2) the framers’ goal in barring Presidents from unilaterally entering wars abroad — so that (as James Wilson said in 1787) "it will not be in the power of a single man… to involve us in such distress" — remains unshakably right today; and 3) it seems probable that the President’s war plans, if tested and shaped in the crucible of democratic debate, would have been more carefully considered, more coherent, and more likely to sustain public support when the going gets tough.

That the Framers intended to assign the power to enter wars abroad to Congress, not the President, is not a debatable proposition. As the first President, George Washington, said in 1793: "The Constitution vests the power of declaring war in Congress; therefore no expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure." This view long stood. In 1956, President Eisenhower asserted: "Until the Congress, which has the constitutional authority, says so… I am not going to order any troops into anything that can be interpreted as war."

To be sure, the Constitution assigns to the President, as commander in chief of the armed forces, the pre-eminent role in repelling sudden attacks and in deciding how to conduct wars that Congress has authorized. Today, with Americans and American forces exposed to the risk of sudden attack around the globe, it seems consistent with the Constitution for the President unilaterally to use force to carry out U.S. obligations under Senate-ratified treaties and to launch operations such as President Carter’s aborted hostage rescue attempt in Iran.

But in the words of John Hart Ely’s classic 1993 book, War and Responsibility, "The unequivocal meaning of the original document was that Congress was to start wars, the President to fight them."

The drift toward presidential usurpation — and congressional abdication — of the war power began with the wars in Korea, which Congress never clearly authorized, and in Vietnam, which it did authorize (in the Tonkin Gulf Resolution), but without serious deliberations.

That drift continued through such episodes as President Reagan’s occupation of Grenada in 1983 and President Bush’s storming of Panama in 1989. As the Reagan and Bush Administrations flexed their military muscles, with politically popular results, most Republicans came to think of the war power as the property of the President; they dismissed as annoying (and as unconstitutional) such congressional efforts to reassert control as the now-moribund War Powers Resolution of 1973.

Many Democrats, such as then-Rep. Leon E. Panetta of California and then-Senate Majority Leader George J. Mitchell, did resist the Reagan and Bush encroachments on the war power. "The President has no authority, acting alone, to commit the United States to war," Mitchell asserted in 1990, while U.S. troops were preparing to expel Iraqi invaders from Kuwait.

In part because of demands from Democrats and constitutional scholars, in early 1991 Bush belatedly sought, and narrowly won, House and Senate votes authorizing Operation Desert Storm.

Where are the Democratic champions of Congress’s war power today? Their constitutional principles apparently applied only to Republican Presidents, for they have largely supported President Clinton’s unilateral use of U.S. forces in 1993 to police Somalia (disastrously), in 1994 to occupy Haiti, and, now, to attack Yugoslavia. In this case, as Campbell notes, "there was no attack on the U.S., no summons from an ally under attack,. . . no emergency that prevented congressional deliberation."

Constitutional niceties aside, would the U.S. war effort in Kosovo have been better planned if the President and Congress had followed the constitutional scheme, by engaging in serious consultations and public debate before initiating military action?

I think so. One reason is that public debate almost always encourages more realistic assessments of whether strategies hatched by executive branch officials in closed meetings will work as planned. Another is that the kind of presidential unilateralism preferred by Clinton seems to focus on short-term objectives and short-term impact on public opinion polls. The need to sell a war plan to Congress — which has the expertise to look farther down the road than most citizens — might foster a more careful, long-term strategy.

For example, I doubt that Clinton could have convinced Congress that he should launch the air war with a public pledge not to use ground troops. Clinton apparently made that pledge in order to lull public opinion at home. But the foreseeable effect — against which congressional leaders would surely have warned — was to embolden Slobodan Milosevic to speed up the ethnic cleansing of Kosovo and to gamble that the U.S. lacked the will to roll that cleansing back.

While such considerations lend support to Tom Campbell’s push to reclaim Congress’s war power, he will face an uphill battle. After so many years of presidential supremacy, many in Congress find it politically expedient to let the President take the risks of war and then applaud or jeer depending on how things turn out.

And even those of us who deplore such congressional abdication and presidential unilateralism are not exactly purists. If Congress were unwilling to authorize an attack on a nation that was clearly engaging, on a massive scale, in preventable genocide, for example, many of us might want the President to act alone.

But this hypothetical seems unrealistic. We are entitled to expect that Congress would do the right thing in such a case — and in the case of Kosovo, will do the right thing if the President can show that the Serbs’ atrocities amount to genocide. To let preventable genocide proceed would be abdication of a moral obligation even more fundamental than Congress’s duty under the Constitution.