WAR AND THE LAW

President Bush last week cited the 25th Amendment to the Constitution when he turned over the powers and duties of the presidency to Vice President Dick Cheney while undergoing a colonoscopy. Actually, the amendment says only that “whenever” the president declares himself unable to function the vice president temporarily becomes acting president, so Mr. Bush went beyond the requirement.

“I did so,” he said, “because we’re at war and I just want to be super – you know, super cautious.” So far, so good. But his reference to what he has called the “war against terrorism” calls to mind another provision of the Constitution. Article 1, Section 8, lists among the powers of Congress: “To declare War, grant Letters of Marque & Reprisal, and make rules concerning Captures on Land and Water.” There you have it, odd capitalizations and all (including the mention of letters of marque and reprisal, which turned American merchant ships into privateers, temporary warships, in the Revolutionary War and the War of 1812).

Presidents and congresses have regularly ignored that provision for 60 years. Still, the father of the Constitution, James Madison, had this to say: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”

Before U.S. officials amass the troops to overthrow Iraq’s dictator, Saddam Hussein, the president should ask Congress for a declaration of war. The result would be a major public debate over what course to take. But anything less would be an abdication of a constitutional mandate.