Modern hindsight tends to view the Persian Gulf War as an undisputed and straightforward political success, the high-water mark of George H. W. Bush’s presidency. Operation Desert Storm, as it was codenamed, was a large-scale operation that resulted in a decisive U.S. victory. It deployed half a million troops, lasted just six short weeks starting in January 1991, liberated Kuwait from Iraqi occupation and resulted in fewer than 150 U.S. combat deaths – though it killed an estimated 20,000-30,000 Iraqi troops. “We won, and we won big,” said Bush’s Secretary of State, James Baker, of the conflict in a 1996 interview with PBS’ “Frontline”. “When people look back at this, they will see it as a textbook example of the way in which the world community can react to unprovoked aggression.”
Iraq’s military occupation of Kuwait began on August 2, 1990, a consequence of dictator Saddam Hussein’s allegation that the small nation was stealing oil from fields on the Iraqi side of their border and conspiring with Saudi Arabia to sell oil at a low price to the West. Countries around the world condemned Iraq’s aggression. The United Nations Security Council passed economic sanctions against Iraq, freezing the country’s foreign assets and imposed crippling trade embargoes. The U.S. and its NATO allies rushed troops to Saudi Arabia on August 7 to intimidate Hussein and to defend Saudi Arabia in the event of an Iraqi attack, an effort codenamed Operation Desert Shield.
From the perspective of the international community, Iraq’s invasion warranted combat – the U.N.’s passage that November of Resolution 678 authorized military action against Iraq if Hussein’s troops did not withdraw by January 15 of the following year. As the deadline drew near and Hussein continued to reject diplomatic resolutions, President Bush strongly believed it would become necessary to attack – advocating the escalation of Operation Desert Shield into Operation Desert Storm. After weeks and months of politicking behind-the-scenes and in the media, Bush officially requested Congress’ authorization for military action in a letter on January 8, 1991.
In Congress, the memory of the 1964 Gulf of Tonkin Resolution, which authorized President Johnson to expand the conflict in Vietnam, hung over the debate. “Out of the 17,000 votes I’ve cast, the only one I really regret was the one I cast for the Gulf of Tonkin Resolution,” said Charles Bennett, a Florida Democrat, on the House floor. “I knew it was a declaration of war, just as is the… measure before us today.” The eventual congressional go-ahead that Bush received three days later was the narrowest-margin military force authorization since the War of 1812.
That entire debate, however, could have been moot had President Bush decided to not go to Congress at all and unilaterally order the military into Kuwait, a path he seriously considered taking.
Bush realized the consequences of such an action could be grave. “Congress is in a turmoil, and I am more determined than ever to do what I have to do,” he wrote in his diary prior to the vote. “If they are not going to bite the bullet, I am. They can file impeachment papers if they want to.” The possibility of impeachment hung heavily on his mind, appearing in his diary four more times between December 12, 1990 and January 13, 1991.
In a November meeting with the President, Democratic House Speaker Tom Foley told Bush, “There [would be] great concern if a decision is made unilaterally by you as President.” Many favored delaying military action past the U.N. deadline to give economic sanctions more time to work, which Missouri representative Dick Gephardt believed might take up to a year-and-a-half. Hawaii Senator Daniel Inouye outlined the stakes in stark terms: “If you’re wrong about this, you are going to be impeached by Congress,” he told Bush.
“The framers clearly intended that before placing the nation at war, the president would get congressional approval. There was no practice that suggested the Constitution had been changed on that score – the president needed to respect those limits,” says Michael Glennon, a professor at Tufts’ Fletcher School of Diplomacy, of the Democrats’ mindset.
By mid-December, an all-Democratic cohort of 53 representatives and one senator had filed the lawsuit Dellums v. Bush in an effort to officially enjoin any unilateral executive military action. The U.S. District Court for the District of Columbia dismissed the case on the grounds that Bush’s war plans were not set in stone, and moreover, that the plaintiffs represented just a small fraction of Congress. “It is only if a majority of the Congress seeks relief from an infringement on its constitutional war-declaration power that it may be entitled to receive it,” wrote Judge Harold Greene in his opinion.
“Judge Greene’s position was the case was not ripe for review,” says Glennon, who helped write the ACLU amicus curiae brief on the case. “But Judge Greene did [rule] that the President would be acting beyond the scope of his exclusive power […] if he proceeded to use force against Iraq without congressional approval. So it was still an important precedent.”
The Bush administration’s argument to the public was that history was on their side. Secretary of Defense Dick Cheney enumerated at the time that the executive branch had used armed force on over 200 occasions throughout U.S. history, with only five congressionally approved declarations of war. A longtime proponent of executive authority, Cheney was an outspoken advocate for unilateral action in the Gulf. “I was not enthusiastic about going to Congress to ask for an additional grant of authority…. Legally and from a constitutional standpoint, we had all the authority we needed,” Cheney recalled five years after the conflict. “If we’d lost the vote in Congress, I would certainly have recommended to the President we go forward anyway.”
Glennon says that Cheney’s precedent argument regarding unilateral executive military action “is trotted out every time the executive uses force without congressional approval.”
“If you look at that list, nearly all of these cases involve minor uses of force, inconsequential fights with pirates or skirmishes with bandits across borders. Only a tiny handful involve foreign military engagements that place the nation as a whole at risk, or involve potentially large-scale casualties over a protracted period of time,” Glennon continues.
Historian Russell Riley, head of the Presidential Oral History Program at the University of Virginia, agrees that “there is a very long history of military interventions abroad – everything from Barbary pirates to the desert helicopter mission to get hostages out of Iran – in which presidents have freely exercised their powers without any sort of authorization from Congress.” But he adds the caveat that “the scale does matter. Desert Storm was a major military incursion. The scale of that dwarfed almost any of the earlier sorts of interventions.”
Bush, for his part, was resolute. He had been deeply moved by an Amnesty International report documenting the human rights violations that Kuwaitis continued to endure, which instilled in him a melancholy but passionate determination to end Iraq’s occupation by the military means that he believed necessary. He made his resolve acutely clear in his subsequent remarks to then-C.I.A. director Bob Gates. “If I don’t get the votes, I’m going to do it anyway. And if I get impeached, so be it.”
The public remained split on the issue; the day before Bush sent his request, a New York Times CBS News poll found that 46 percent of the public favored war and 47 percent wanted to give the sanctions more time to work.
As speculative whip counts suggested that Bush would have just enough votes in the Democrat-controlled Congress, Bush decided that having the legislature’s authorization would present a strong unified front to Iraq. “[A congressional resolution] would help dispel any belief that may exist in the minds of Iraq's leaders that the United States lacks the necessary unity to act decisively in response to Iraq's continued aggression against Kuwait,” he wrote in his letter to Congress. The same day, Secretary of State Baker met with Iraqi Foreign Minister Tariq Aziz in Switzerland in a last-ditch effort to resolve the conflict diplomatically. Aziz’s refusal of Baker’s demands strengthened Bush’s case, as more legislators began to agree that military action was necessary.
On Saturday, January 12, the resolution passed, giving President Bush the express authority to go to war against Iraq, largely thanks to Republican support and small cohorts of Democrats opposing party leadership.
Ultimately, says Glennon, “the precedent that [Bush] created was that he went to war with congressional approval. It’s not the precedent of a president running off as a rogue elephant, it’s not the precedent of a president thumbing his nose at Congress, it’s not the image of a Clint Eastwood tough guy. It’s the image of a president who is complying with the intent of the framers of the United States Constitution.”
The constitutional war powers issue surfaced again seven years later, when President Bill Clinton went ahead with NATO airstrikes against Serbs in Kosovo in the spring of 1999 after trying and failing to achieve full Congressional approval. The Senate passed a non-binding authorization of force on March 23, 1999, after which the bombing immediately commenced – before the House had a chance to vote on it. When the House finally took up the legislation a month later, the resolution failed in a rare tie vote.
"The House did vote against engagement in Kosovo, and Bill Clinton kept fighting anyway,” criticized Republican representative Peter King after the conflict. “He had bombing missions being carried in Kosovo after the House of Representatives voted against him taking action."
In Glennon’s view, Clinton’s bypassing of the House in authorizing the Kosovo airstrikes is a clear example of the kind of executive overreach that Bush eventually decided to avoid. “The Framers gave Congress the power to decide for war or peace for a reason: it’s too risky to place that decision in the hands of only one person,” he says. “Before the first Gulf War, President Bush honored the Framers’ intent; in bombing Yugoslavia, Clinton did not.”
Precedents for war-making powers swung in Congress’s favor when George W. Bush declared war in Iraq in March 2003. Following in his father’s footsteps, Bush 43 also sought congressional authorization but again considered going alone, again on the advice of Dick Cheney, now Vice President. The October 2002 resolution received a resounding bicameral majority on October 3, 2002. “It was a gamble, but it was a prudent gamble,” says Riley. “I think in that instance, again because of that post-Cold War environment, it made sense for him to go back to Congress.”
More recently, President Trump’s decision to respond to an alleged Syrian chemical weapons attack with an airstrike that lacked congressional authorization has drawn sharp constitutional criticism from members of Congress. “President Trump’s strikes are illegal. He does not have authorization to take military action against Syria,” said Senator Chris Murphy, a Connecticut Democrat. “What restrains Trump from launching an attack on North Korea without getting congressional authorization if he gets away with this attack on Syria?”
Constitutionally, Glennon sees a strong connection between Congress’s outrage over Trump’s unilateral military action and their initial concern that Bush wouldn’t consult them about the Gulf War. “Fundamentally, the arguments are parallel,” he says. “The basic argument is that if the President wishes to take military action abroad, that creates significant risks for the nation as a whole, he’s required to get congressional approval unless it’s an emergency.”
In Riley’s overall view, the recent history of U.S. military decisions demonstrates the ultimate control the executive branch has assumed over war-making. Despite efforts by Congress to assert their authority, he says presidents tend to seek military authorization just when it’s politically expedient.
“Since [the War Powers Resolution of] 1973, there are these games that go on. Everyone in Washington knows what will happen: the president will make noises about consultation with Congress, and then will pretty much do what he wants,” says Riley.