Who Leads on Foreign Policy?

The battle over allocation of foreign-policy powers between the president and Congress, joined so publicly during the Reagan administration, has moved underground amid signs that neither branch learned much from the traumas of the late 1980s.

The Bush administration, bolstered by bold misreadings of the Constitution and its history, has issued sweeping claims of executive power that virtually exclude Congress from the conduct of foreign affairs.

Two administration lawyers recently asserted in a letter to The New York Review of Books that the Framers had intended a system "whereby the president executes the law and conducts foreign affairs, subject only to specific congressional checks"-and armed with ”a residual power that encompasses all authority not expressly delegated to the other branches of government.”

And in a pretrial brief in the Oliver North case, Dick Thornburgh’s Justice Department contended in 1988 that "the president has plenary power which Congress cannot invade" to circumvent congressional spending bans by soliciting money from foreign leaders for covert military operations. When Congress voted last year to bar such solicitations, the administration said it was unconstitutional and the president vetoed the bill.

Meanwhile, after episodic resistance to the Reagan policies in Central America, Congress has resumed its decades-old habit of acquiescence in unilateral presidential actions, including those that skirt its own laws.

When the president invades Panama, hardly bothering to notify (let alone consult) anyone in Congress, the public approves, so Congress applauds. So much for the War Powers Resolution of 1973, which was supposed to prevent unilateral presidential use of military force.

Panamanian Pandemonium

A simple assassination would have been a lot cleaner. Instead, President George Bush launched a 25,000-person military invasion that killed hundreds of Panamanians and 26 U.S. citizens, left thousands maimed or homeless, brought condemnation in world opinion, and climaxed with the unprecedented spectacle of a foreign ruler flown in shackles to stand trial in the United States.

Why not just send a hit squad after the despised Gen. Manuel Antonio Noriega? Because that would be immoral? Come now, what’s immoral-killing one murderous despot or hundreds of innocent young soldiers and civilians?

No, the reason we don’t assassinate foreign tyrants any more is Realpolitik: It would set a precedent for our enemies, the baleful consequences of which a U.S. president can readily appreciate.

So, in hopes of hitting Muammar al-Qaddafi, then President Ronald Reagan sends 18 bombers that miss Qaddafi but kill his 15-month-old adopted daughter and others. To get Noriega, President Bush opts for deaths by the hundreds.

And among the president’s justifications, he lists putting this one man on trial-not in Panama for crimes against his own people, but in Florida for the same drug trafficking that the CIA condoned when Noriega was a U.S. "asset."

The policy against assassinations is sound. And the reasons for it should give pause to those who so contemptuously brush aside concerns about the casual trampling of international law that attended the president’s glorious little war.

Violations of international law set precedents, too, for every tinpot dictator or demagogue with aggressive designs against neighbors or U.S. citizens abroad. Witness Iran’s aping of a Justice Department legal opinion last year, when that country authorized the arrest anywhere in the world of Americans who damage Iranian interests.