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Schell: Missing in action -- the Constitution

Jonathan Schell, the crusading author, journalist and anti-war

Jonathan Schell, the crusading author, journalist and anti-war activist who condemned conflicts from Vietnam to Iraq and warned of a nuclear holocaust in terrifying detail in his galvanizing best seller, "The Fate of the Earth," has died at age 70. Credit: Newsday

Jonathan Schell was a reporter and columnist for Newsday and The New Yorker among others and a longtime writer for The Nation, where his most recent column appeared in the fall. He died on March 25, 2014. This piece originally appeared in Newsday on Sept. 25, 1994.

AT 6 P.M. last Sunday, the first C-141 troop carriers took off from Fort Bragg for Haiti. However, as the world knows, about an hour later, even before the entire force was airborne, the planes turned back. Former President Jimmy Carter, former Chairman of the Joint Chiefs of Staff Colin Powell, and Senator Sam Nunn had secured the agreement of the Haitian junta to leave power, the invasion was called off, and there followed the confused intervention we watched on television all week.

Nevertheless, the hour after the command to invade was given and before the planes turned around is important to fix in memory. For, although the order did not prove fateful for Haiti (unless, as the administration claims but Carter denies, the news caused Haiti's leaders to sign the agreement), it was of great importance in the Constitutional history of the United States. The fact is that the president ordered a military invasion to overthrow another government without either asking or receiving permission in any form from Congress, which under the Constitution is given the power to declare war.

When the planes left Fort Bragg, they left the Constitution behind. Indeed, Clinton's decision appears to be an even clearer violation of the Constitution than breaches that occurred during the Cold War. In other instances, presidents either were responding to a real or an alleged emergency, or they had obtained or received some expression, however perfunctory, of congressional approval.

In the first category are Truman's dispatch of troops to Korea, Reagan's invasion of Grenada, and Bush's invasion of Panama. Whatever the constitutionality of Truman's action, the urgency, at least, was plain, for South Korea was being overrun by North Korea in a surprise attack. Reagan, making a much more dubious claim of urgency, asserted that he needed to act quickly to protect American medical students on Grenada, while Bush cited incidents of violence against Americans in Panama. Each justification was an obvious fig-leaf for action being taken for other reasons, but at least these presidents paid lip-service to the Constitution.

In the other category are the Vietnam and Persian Gulf wars. The Tonkin Gulf resolution, authorizing the president to take the steps necessary to cope with events in Vietnam, was by no means a declaration of war, yet it was at least a manifestation of Congress' will. It was, you might say, an expression of its will not to express its will. Before the Persian Gulf, a Senate resolution authorized the use of force, although Bush steadfastly claimed the right to go to war even without any resolution.

All of these precedents have the look of constitutional punctiliousness by comparison with the actions of Clinton, who neither confronted any emergency nor solicited any expression of support from Congress. Indeed, the decision to launch the invasion just one day before an expected vote of disapproval in the Congress suggests that avoiding constitutional requirements became an element in his planning.

The role of Senator Nunn in the negotiations that led to the agreement also underscores the president's decision to overlook the will of Congress. Nunn's reported role in the talks was to make it clear to the Haitian generals that even if the Congress opposed Clinton's decision to invade, it would not oppose him once an invasion was under way. In other words, the president had a special emissary in Port-au-Prince to tell the targets of American military action that in this case the Constitution would not apply.

How has it happened that the end of the Cold War has not brought with it an end to the unconstitutional aggrandizement of presidential power that the Cold War seemed to produce? Harold Koh, who teaches constitutional law the Yale School, and who before the invasion signed a statement counseling Clinton to seek congressional approval before any invasion of Haiti, offers an interesting suggestion. He argues that presidents who, like Clinton, are weak or wavering in their foreign policy may be more likely to evade the Constitution than presidents who are strong in foreign policy. In Somalia, in Bosnia, and in Haiti, he notes, Clinton has continually seemed to be seeking to back out of commitments he made earlier. "If he had used the time to persuade the public of his case, he might have had the support of Congress that he needed when it was time to act," Koh remarked recently.

Instead, when Clinton finally acted, he stood alone. He could not seek congressional approval because none was forthcoming. It's a pattern of events that will threaten to repeat itself until the president, not to mention the country he leads, learns to pay more attention to foreign policy.