Balkinization  

Friday, January 05, 2007

Congressional Democrats Conclude "It is Time to Bring the War to a Close" . . . But Appear Unaware That They Can Do Something to Make It Happen

Marty Lederman

Word is that Majority Leader Reid and Speaker Pelosi are preparing to send this remarkable letter to the President, in which they oppose the anticipated troop "surge":
Surging forces is a strategy that you have already tried and that has already failed. Like many current and former military leaders, we believe that trying again would be a serious mistake. They, like us, believe there is no purely military solution in Iraq. There is only a political solution. Adding more combat troops will only endanger more Americans and stretch our military to the breaking point for no strategic gain. And it would undermine our efforts to get the Iraqis to take responsibility for their own future. We are well past the point of more troops for Iraq.

The Democrats argue in favor of a "phased redeployment of our forces." "In short," they explain, "it is time to begin to move our forces out of Iraq. . . . [I]t is time to bring the war to a close."

This is obviously the strongest statement of policy yet by the Democrats with respect to the Iraq War. All the more remarkable, then, how the letter ends:
"We, therefore, strongly encourage you to reject any plans that call for our getting our troops any deeper into Iraq. . . . We appreciate you taking these views into consideration."

Surely Reid and Pelosi know that they can do much more than simply plead with the President to "take their views into consideration"! If this truly does represent the views of a majority of both Houses (as appears likely -- there's already a great deal of Republican opposition to the "surge" proposal, too), then Congress should pass a law prohibiting the "surge," and requiring the phased redeployment.

The beginning of the letter is absolutely correct: "The start of the new Congress brings us opportunities to work together on the critical issues confronting our country. No issue is more important than finding an end to the war in Iraq." The power is in their hands. If this is the most imporant pending issue -- and the American public overwhelmingly agrees that it is -- then shouldn't this be the very top legislative priority?

Yes, of course Bush might veto such a bill. And perhaps such a veto could not be overriden (although I would not be too sure about that). But even in that case, the lines of responsibility between the President and the Congress will be drawn even more starkly and clearly -- which would, I think, only be worthwhile, both for the Democrats themselves and for the Nation.

[UPDATE: The New York Times writes that "[i]n theory, [Congress] could cut off financing, the only way it could actually interfere with the commander in chief’s plans. But Democrats have said they would not take such a step, largely out of fear of being accused of undercutting the troops. . . . That leaves them with only one option: holding a series of hearings, which start next week, immediately after the president’s speech, that are intended to expose the divisions within the military over the wisdom of increasing troops."

This is simply wrong. Congress does not have to "cut off financing" for troops on the ground. It could instead simply pass an appropriations rider providing that no funds may be used to increase the number of troops in Iraq (or specifying the extent to which such funds could be used for a troop increase, and conditions on such an increase -- examples of such legislation can be found on the final page of this Center for American Progress Report). Or the legislature could forego the appropriations route entirely, and simply pass a law prohibiting more than X troops in Iraq, and requiring whatever sort of "phased redeployment" the Democrats have in mind.]

If Congress does nothing to instantiate its strongly stated views about this most important matter of public policy, but resorts to mere pleading to the President to do the right thing, I fear that the Democratic Leadership letter will be viewed as implying that this is a decision for the President alone to make, and that Congress has no legal say in the matter. Nothing could be further from the truth.

Comments:

prof. lederman.

i am not an expert in constitutional law, so i pose this question for you or anyone else to answer.

assuming that the authorization for the use of military force is either a declaration of war, or full authorization for the president to engage in hostilities in iraq, as well as on the so called "war on terror", wouldn't a statute passed by congress prohibiting a "surge" in troop strength, as you propose, be in violation of the commander in chief clause of the constitution?
 

just strikes me as good strategy. they know that bush is a stubborn guy and balks when people order him around, so they take a subservient (and really, slightly patronizing) tone with him.

this letter isn't a statement of policy. it doesn't prevent them from taking more decisive action if the president acts like an idiot, but that's the baseline -- he's an idiot now, and getting him on board with the right policy is a net benefit.
 

Read the 2003 Authorization for the Use of Military Force in Iraq. It authorized a war for purposes of eliminating the thread of WMD and enforcing UN Security Council resolutions relating to same.

That war, if it ever occurred, is long since over. The language of the AUMF says nothing about policing Baghdad or refereeing a civil war. Sen. Warner noted this last August, and warned that a civil-war mission could require the administration to come back to Congress for new authority. Today, Sen. Biden is talking openly about legislative action to amend or repeal the AUMF.
 

JaO: Today, Sen. Biden is talking openly about legislative action to amend or repeal the AUMF.

This isn't the first we've heard of this idea. As noted here Congresswoman Lynn Woolsey was pushing this back in August. Of course some of us are still pushing to go back even further and repeal the legislative embodiment of the fallacious so-called "war" on terror.

I like your point that, as read, the 2003 authorization limits the scope of the "c-in-c's" powers to the WMD issue. It would be nice to see the Cheney cabal hoist on that particular petard.
 

But if Congress were to acknowlege they had the power to end the war, they'd be acknowleging that they are responsible for the war's continuance if they didn't end it, and to some extent responsible for the consequences of our leaving, if they did end it.

And Congress abhors, above all, responsiblity. Therefore they won't assume the power that leads to it.
 

Brett: And Congress abhors, above all, responsiblity.

Dude, either talk sense, or dont' talk at all. "Congress" was just fine taking responsibility for the war when "Congress" was a bunch of Republicans for whom the war meant more pork and a boost in the polls. Now that "Congress" is a Democrat/Republican split you will indeed see both sides trying to avoid taking the blame for the Cheney junta's crimes and failures. The difference being, of course, that the Republican "Congress" which voted in AUMF '01 and AUMF '02 are responsible, but will rely on Hannity and O'Reilly and the rest Rupert Murdoch's minions to spin as much of the blame as humanly possible onto the Democrats in the current divided "Cognress."

And I guess we can count on the likes of you to parrot whatever Rush and Bill tell you. Pity.
 

The letter calling for a cut and run from Iraq was pathetic sop for the Sheehan wing of the Dem party, a contingent of which embarrassed Emmanuel and the Dem House leadership in front of the press the other day.

If Pelousi and Reed thought they had a majority of either chamber of Congress which would vote to retreat within 4-6 months, they would put up a resolution for a vote. In fact, the Dem leadership represents the old line left in the party while most of their caucus has been elected since 1994 running on center to center-right campaigns. They have nothing close to a majority for this surrender plan and are only speaking for their wing of the Dem party.

This letter is simply despicable. With troops in harm's way, you never ever show the enemy that you are divided and prepared to retreat from the field of battle.

If al Qaeda In Iraq sent a letter to al Jazeera telling the world that they were set to withdraw from Iraq because of the enormous casualties they have suffered at our hands, such a letter would encourage our commanders to attack all the harder to hasten al Qaeda's departure. Our enemy is no different. This kind of letter will only cause the enemy to fight harder to kill our troops in order to prod the Dems to act to withdraw.

Can you imagine the GOP pulling this stunt during WWII as we were suffering exponentially heavier casualties in the boacage of Normany and taking one bloody island after another in the Pacific?

If Congress is not prepared to compel a US surrender in Iraq, then they should sure as hell not call for one with our troops in the field.
 

JaO said...

Read the 2003 Authorization for the Use of Military Force in Iraq. It authorized a war for purposes of eliminating the thread of WMD and enforcing UN Security Council resolutions relating to same.

Congress authorized the President to eliminate any threat posed by Iraq including taking all necessary actions against terrorist organizations in Iraq.

Additionally, the post 9/11 AUMF authorized military action against al Qaeda and its allies, the largest active contingent of which is in Iraq.
 

I concur in the sentiment, but you listen, and you hear this meme that foreign policy of this sort is somehow basically the responsibility of the President, who might wish to respect Congress, since it's sorta understood that you can't say "FU" to them TOO loudly, but that's basically it.

Sure, it's partially a matter of Congress not wanting to take responsibility (sorta like Bushies saying they never could imagine "x" happening when we know it's b.s.), but it's more than that. It's a post-WWII philosophy of constitutional executive power.

Some realize that Congress actually has power here too. The whole checks and balance thing. But, sadly, they STILL are not firm enough in practicing it. That, and the reality of Lieberman Democrats having the balance of power, not willing to be too "radical" against this insane policy.
 

Based upon what caselaw can Congress pass a law "prohibiting more troops in Iraq"? The power of the purse is legit, but how is this other suggestion Constitutional?

Regardless of the merits of it, how does this not unconstitutionally interfere with the President's role as Commander in Chief?
 

well this is where the rubber meets the road it seems.either congress passes an act,any kind of legislative act,stopping the surge,or rossiter,and yoo,are right.yes, columbia,there is a constitutional dictatorship,supreme court shillyshallying or not.
michele surdi
rome
(the real one)
 

"Based upon what caselaw can Congress pass a law"

Congress needs caselaw to pass a law? News to me.

The power to declare war is the power to undeclare it. And the power to impeach is the power to enforce that undeclaration.

Doesn't mean I think it would be wise of Congress to order us to retreat, but the notion that they don't have the power to do so if they really want is just a dodge to avoid responsiblity. The founders designed for legislative supremacy, and all the tools Congress needs to assert it are in their reach any time they choose to reach out and reclaim them.

Congress has always had the power to rein in the imperial Presidency. They just lack the will.
 

I was about to post a "devil's advocate" modifier to my earlier comment, but Bart DePalma did it for me. There is, in fact, mention of "terrorist" adversaries in the whereas clauses of the 2002 Iraq AUMF. But the operative language specifically authorizes action to:

"(1) defend the national security of the United States against the continuing threat posed by Iraq; and

"(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq."

Iraq, a sovereign state, no longer poses a threat to the United States, and the relevant UN resolutions have been enforced. Mission accomplished.

I am interested in Bart's assertion that the 2001 AUMF, specifically directed against the perpetrators of the 9/11 attack, authorizes our current action in Iraq. If Bart is correct, and the 2001 authorization is sufficient to support open-ended war against Al Qaeda in Iraq, then is not the 2002 authorization surplussage that could be repealed?

If Iraq literally is the central front in the war against Al Qaeda, does the 2001 AUMF cover this war, or not? Let's have Congress address that question directly.

In any event, how does either AUMF authorize our involvement in an Iraqi civil war, where foreign Al Qaeda fighters are a minor faction? That is the question Sen. Warner raised in August when he suggested that such a scenario could require additional action by Congress.
 

jao said...

Iraq, a sovereign state, no longer poses a threat to the United States, and the relevant UN resolutions have been enforced. Mission accomplished.

James Fallows in the Atlantic and a number of my prior posts at different blogs have argued that we have accomplished all of our prewar objectives in Iraq and have, in fact, won the war. Fallows would take this victory and run from Iraq. On the other hand, I had always envisioned a long term US presence (albeit reduced) in Iraq to engage al Qeada and other jihadists.

Does anyone here actually argue that we should leave al Qaeda a sanctuary in Iraq and depend on the infant Iraqi military to deal with them? If not and you say we would stay to deal with al Qaeda, then you have a second problem which cannot be avoided - dealing with the Iraqi factional terrorism. Even if you ordered our troops not to attack these factions, they would be attacking our troops.

For what it is worth, my view is that our forces by default have to keep a lid on the situation until the Iraqis get fully trained up. During this process, we can gradually draw down our forces as we had until the violence spiked prior to our elections (which was not an accident IMHO).

I am agnostic about a temporary troop surge before we resume standing down as the Iraqis stand up. However, the new Iraq commander, General Petraeus, has had a great deal of success pacifying Iraq during his stint as commander of the 101st Airborne and then in training Iraqi forces. I would suggest that Petraeus has earned some latitude in determining troop levels to apply his techniques to the entire country.

I am interested in Bart's assertion that the 2001 AUMF, specifically directed against the perpetrators of the 9/11 attack, authorizes our current action in Iraq. If Bart is correct, and the 2001 authorization is sufficient to support open-ended war against Al Qaeda in Iraq, then is not the 2002 authorization surplussage that could be repealed?

Assuming Congress has the constitutional power to withdraw the 2002 Iraq AUMF (which I have argued is effectively a declaration of war), then General Petraeus will be placed in a situation where he could attack al Qaeda and its allies, but not the Shia militias or those Sunni militias not aligned with al Qaeda, even if these militias attack our troops.

Better to stay with the 2002 AUMF general language authorizing the President to deal with all terrorist groups in Iraq.

If Iraq literally is the central front in the war against Al Qaeda, does the 2001 AUMF cover this war, or not? Let's have Congress address that question directly.

If Congress has nothing better to do, let them hold hearings to verify the al Qaeda presence in Iraq which is reported nearly every week in the media. The Dems plan on holding hearings on every other topic under the sun rather than actually acting on any plan to actually win our war. Why not this one as well?

In any event, how does either AUMF authorize our involvement in an Iraqi civil war, where foreign Al Qaeda fighters are a minor faction?

Putting aside for the moment whether a sectarian terror campaign aimed at murdering civilians can be called a civil war, the 2001 AUMF expressly authorizes the President to use military force against al Qaeda and its allies anywhere around the world and the 2002 AUMF expressly authorizes military action against any terrorists in Iraq. These "declarations or war" are quite clear in this regard.
 

brett,

I am fully aware that Congress does not need caselaw to pass a law.

Nevertheless, I am not familiar with cases that hold that Congress can pass a law restricting the President's in such a manner as proposed (outside of Congress using their power of the purse.)

I fully understand why you say they should do it, but you and others fail to explain where they derive the Constitutional authority. Saying they can "because they have the tools" is just asserting as true the issue in question.

Furthermore, your point about "the power to declare is the power to undeclare" doesn't speak to the issue. We are talking about Congress stipulating in a very specific way how the President can use military forces in a war. Not whether war exists or not. Of course, Congress can remove the authorization for the war, but that isn't what I am asking about.

How can Congress (without using its power of the purse) stipulating the level of forces and/or which forces the President can use not violate his role as C-in-C?
 

Blueprint for peace
Recommended reading.


A blueprint for peace in Iraq
By Ali Allawi, former Iraqi Defence Minister
5 January 2007

Ali A Allawi, until recently an Iraqi minister, is one of Iraq's most respected Shia politicians of the post-Saddam era. His study of the crisis in Iraq is by far the most perceptive analysis of the extent of the disaster in his country, and how it might best be resolved. It is in sharp contrast to the ill-thought-out maunderings of experts and officials devising fresh policies in the White House and Downing Street. –Patrick Cockburn
 

Congress also has more subtle ways of pressuring the Administration. For example, it could use the Paygo principle -- everybody's in favor of that, right? -- and tell the Navy that it will have to mothball a carrier group or two in order to fund the troops in Iraq. I give Bush's policy about 5 minutes of shelf life after that.
 

Bart DePalma: ... the 2002 AUMF expressly authorizes military action against any terrorists in Iraq.

The act "expressly" says no such thing.

One might argue creatively from disconnected verbiage of its whereas clauses that such authorization is implied -- the opposite of express -- but that is only an inferential argument. One might also argue that the context of "terrorist(s)" there merely referred to the threat that Saddam would provide them with WMD. That was certainly my understanding at the time. [As an aside, most blog readers are sick of your longstanding practice of misstating points of the law by paraphrase. Adding "expressly" now to your own broad interpretation does not make it so.]

What the 2002 AUMF expressly authorized was military action to "defend the national security of the United States against the continuing threat posed by Iraq," a sovereign nation. Note that the express language says a "threat posed by Iraq." It does not say in Iraq, or by militias and terrorists in Iraq.

Pursuant to that express authorization, we invaded and defeated Iraq, and deposed its government, more than three years ago. You agree that "we have accomplished all of our prewar objectives in Iraq and have, in fact, won the war."

My point -- and I think the point made by Sen. Warner -- is the actual language does not expressly cover engaging various factions within the nation in a subsequent civil conflict, so the administration might need to ask for an expanded authorization to pursue such a course.

Legally, we no longer are fighting Iraq, and no longer are occupying the country. The current sovereign government is our purported ally. It would seem that a proper legal framework might be a treaty with that government. It also would seem that the legal basis for military action against non-al Qaeda factions inside Iraq is shaky.

Note that here I am not addressing the policy merits of taking such action, merely the issue of what legal language would authorize it. Just because, as you say above, you always envisioned a long-term presence in Iraq does not mean that such a presence was expressly authorized.
 

JaO said...

Bart DePalma: ... the 2002 AUMF expressly authorizes military action against any terrorists in Iraq.

The act "expressly" says no such thing...One might argue creatively from disconnected verbiage of its whereas clauses that such authorization is implied -- the opposite of express -- but that is only an inferential argument.


C'mon now. Here is the pertinent text of the AUMF:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) Authorization.--The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq...

(b) Presidential Determination.--In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that--
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.


http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=107_cong_public_laws
&docid=f:publ243.107

You are focusing solely on the general language in Section 3(A)(1) to "defend the national security of the United States against the continuing threat posed by Iraq."

However, in order to use this AUMF authority, the President needed to certify that any action to "defend the national security of the United States against the continuing threat posed by Iraq" was "consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001."

In short, Congress viewed the threat from Iraq as part and parcel of the war against al Qaeda and terrorist groups in general.

Moreover, several of the reasons Congress gave for the Iraq AUMF were to combat al Qaeda and other terrorist organizations which posed a threat to the US:

Whereas the United States is determined to prosecute the war on terrorism and Iraq's ongoing support for international terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary;

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40)


I do not know how much more expressly Congress can make its opinion that this AUMF is authorizing the President to use military force to combat terrorism in Iraq.

I understand your argument. However, it founders on the shoals of the plain language of the AUMF.
 

Bart,

You say I am "focusing solely on ... the general language" of the 2002 AUMF. Actually, I am focusing on the part of the authorization that actually authorizes anything.

The certification language you cite in no way authorizes the President to do anything at all; rather, it requires him to certify that going to war against Iraq would be "consistent with" the pre-existing war against Al Qaeda. To me that means he promised -- inaccurately, but that's beside the point -- that deploying troops in Iraq would not detract from the ongoing campaign to catch Osama bin Laden in Afghanistan.

And the references to "terrorist(s)" in the whereas clauses also authorize nothing. To the extent that they inferentially explain congressional intent, these references to terrorist groups responsible for the 9/11 attacks show that Congress was worried about the threat of a WMD-equipped Sadam Hussein suppling these groups with such weapons. (Update: Saddam is dead; his government is gone; there are no WMDs. It's been in all the papers.)

At the outside, since some Al Qaeda fighters are now in Iraq even though they weren't there in 2002, the whereas language might be construed to show intent to battle Al Qaeda there today. In no way does it arguably mean Congress intended to authorize U.S. force against Shia or Sunni militias unaffiliated with Al Qaeda, just as you concede that the 2001 AUMF language generally authorizing action against those same 9/11 terrorist group could stretch to include "the Shia militias or those Sunni militias not aligned with al Qaeda."

You say, "I do not know how much more expressly Congress can make its opinion that this AUMF is authorizing the President to use military force to combat terrorism in Iraq."

I do. Congress could directly authorize the use of military force to combat non-government militias, insurgents, criminal gangs and other irregular armed forces within Iraq today. The existing language was drafted to authorize a war against the state of Iraq, which is now our putative ally.

Write your congressman and ask for a vote on such expanded language. Or write the President and ask him to submit such a draft.
 

For those of you who question whether action by the Congress to restrict the President's actions is constitutional, I suggest you read Sclesinger's 1973 book on the Imperial Presidency. The more relevant question is whether anything short of a refusal to fund the war would be effective. As the President has amply demonstrated, he feels free to ignore whatever he does not like about legislation Congress passes, and this is not a new development. It is notable that the English Civil War, leading to their Glorious Revolution in 1688, started only because the House of Commons refused to fund the King's government. A similar drastic action may be necessary here now.

GYL
 

Gary,

If you are responding to my concerns, then your response just sidesteps the issue of where the authority comes from.

We all agree that Congress can A) defund the war or B) withdraw authorization for the use of force.

My question is where the power comes from that allows Congress to dictate what would seem as traditional C-in-C role as per Professor Lederman's post.

Your whole point about the merits such a law are irrelevant to a discussion of its constitutionality. You say Bush sidesteps the law. Yet, you propose to sidestep/ignore it in pursuit of your own agenda? How "rule of law-ish" of you...



Sidenote to everyone else: There may be a perfectly valid Constitutional justification for a law as explained in Lederman's post ("simply pass a law prohibiting more than X troops in Iraq"), but I have yet to see in the arguments anything more than appeals to necessity instead of explanations of its Constitutionality.
 

HumbleLawStudent:

Not exactly clear what your constitutional concern is. Is it identifying an Article I power? If so, we can start with the Declare War Clause (which includes the power to specify armed conflict limited in certain respects, see, e.g., Bas v. Tingy; Talbot v. Seeman); the Army and Navy Clauses (which likewise allow Congress to set the conditions on which the armed services will fight); the Spending Clause; the Rules for Government and Regulation Clause; and the Necessary and Proper Clause.

If your question is instead why Congress's Article I powers should trump the President's CIC power, well, that's a much more complicated matter. Suffice it to say for now that (i) virtually all precedent seems to point in that direction (see, e.g., Little v. Barreme; Rasul) and (ii) Congress has historically asserted the power, such as in the Vietnam-era restrictions and the War Powers Resolution. Yes, President Bush will say otherwise. But Congress has pretty strong arguments on its side, and should not concede its prerogatives without a fight.
 

Professor,

My question is on what authority Congress could pass a law restricting the amount of troops in a given theatre (without resorting to its power of the purse) especially in an ongoing conflict.

To me, it seems analogous to Congress passing a bill during WW2 saying the President couldn't use the "Big Red One" (1st infantry division) in the attack on Normandy. Such force diposition decisions seem an inherently C-in-C function. Congress, of course, could defund the division or say no funds would go toward this division, but without resorting to its purse power, I don't understand how Congress could permissibly do so -- if C-in-C as provided for by the Constitution is to have any meaning at all.


Thanks.
 

Bart Depalma writes:"The letter calling for a cut and run from Iraq was pathetic sop for the Sheehan?

As much as I think it would be a grave mistake to allow our pathetic blundering in Iraq to turn into to failed nation state by removing our troops and refusing to clean up the mess we made, this tripe is little more than cut-and-paste from any given republican TV campaign ad. Its just plain annoying.

We really can't just remove our troops after what we've done. We have to stay and clean up the mess we've made in so sensitive a place as Iraq.
 

@HLS: Your primary problem stems from a over-simplified notion of what it means to be c-in-c. While authorized to make war the c-in-c gets to say how war will be made. It does not follow, however, that once authorized to make war a commander cannot lose said authorization.

Of course no commander at any level likes to be undercut, be they wrong or right. Nonetheless, the c-in-c power stems from the people's will to make war, and absent that will the power evaporates. Period. That's how democracies work.
 

humblelawstudent:

You have an inflated idea of what the commander in chief power entails: see Schlesinger and also Corwin. But I agree, such an action by Congress would be strenuously objected to and rejected by Bush, and as it is now, there is no power or authority that could resist his rejection. The only power the Congress has left is the power of the purse, and even that would probably also be strongly resisted, perhaps even to the point that it would precipitate a civil, constitutional crisis.

GYL
 

Robert,

I completely understand that the President can lose authorization. All my posts in this thread repeat this, endlessly. However, that ISN'T my point/question.

Preventing the C-in-C from deploying a particular division through a law stipulating as such, INSTEAD OF retracting the declaration of war, AUMF, or withdrawing funding seems to me as an unconstitutional interference with C-in-C powers.

I don't understand why it is so hard to recognize the distinction.

As I have repeated ad nauseum, Congress can use its purse strings or withdraw the authorization of force, but this where I have the question.

Democracies work only by using the proper Constitutional authority to get what you want vis a vis preventing the President from deploying more troops to Iraq.
 

Bart Depalma said: Can you imagine the GOP pulling this stunt during WWII as we were suffering exponentially heavier casualties in the boacage of Normany and taking one bloody island after another in the Pacific?

How about an example a bit closer to the present, like Somalia?

Compare the text of Republican-initiated bills in the 103rd Congress (for example H. Con. Res. 163 -October 7, 1993) with the AUMF-alike that was passed earlier in the same year (S.J. Res 45 -May 25, 1993)

You'll find the original goals were stated as follows:

The Congress supports United Nations efforts in Somalia --

(1) to help provide a secure environment for famine relief efforts;

(2) to prevent a resumption of violence;

(3) to help restore peace, stability, and order through reconciliation, rehabilitation, and reconstruction of Somali society; and

(4) to help the people of Somalia create and maintain democratic institutions for their own governance.


Of course, in the legislation to repeal the authorization, the reasons cited for "cutting and running" were:

1. The goal in sending United States Armed Forces to Somalia, to allow food to reach the starving, has been accomplished. (that being only 1 of the explicit goals, and only an aspect of that goal, to be precise)

2. 27 Americans have been killed while serving there (compare to 3,000 who have died in Iraq)

3. American servicemen are currently being detained against their will as hostages in Somalia.

Therefore, the GOP congressman suggested, the President should: prepare a plan for the immediate withdrawal of United States Armed Forces from Somalia.

So, we don't have to merely imagine the GOP pulling this kind of stunt while troops were in the field. They've already done it in reality!

The first question is whether they were right to do so or not. There are arguments to be made on both sides, and the point I'm trying to make is not that the war in Somalia was well-executed or just, but rather that the GOP have been perfectly willing to "show the enemy that [the country is] divided and prepared to retreat from the field of battle." If they were right to do so, of course, that makes them good leaders, and not back-stabbing legislators intent on getting soldiers killed by an encouraged enemy, right?

The $64,000 follow-up question: if it was right for the GOP to suggest immediate withdrawal mid-fight in Somalia, where our goals had not been completed, why is it "despicable" for people to suggest a withdrawal in a theater where (as you suggest) our explicit goals HAVE been completed?
 

I had trouble with the Google bogger bit and lost my comment while I got logged in.
I just want you all to know that that comment was brilliant.
If congress removes the authorization for military force to be used in Iraq and then only funds the bringing of those troops home, would that get the troops out?
Other countries would help Iraq if we got out.
The armed forces aren't the Peace Corps.
Bush is C&C when the military is in the actual service of the US.
If the AUMF is withdrawn, doesn't that allow congress to bring the troops home as Bush would, at that point, not be C&C. I say try it and let Bush take congress to court.
Also, anyone know how we can prevent congress from EVER doing this type of resolution again?
Also no more War Powers Act?
Only a constitutional Declaration of War to be legal in the future.
When we have a president that seems adverse to not only the spirit of the law, but the letter, who protects us from him?
If the Iraq invasion is found to be based upon lies by the excutive branch, is not the invasion and now whatever they are calling the occupation of Iraq by the US military, isn't the war illegal and so can be shut down?
Told you the lost comment was wonderful and unfortuately, this one is seems written like the prez on a bender.
 

PMS_Chicago said...

Bart Depalma said: Can you imagine the GOP pulling this stunt during WWII as we were suffering exponentially heavier casualties in the boacage of Normany and taking one bloody island after another in the Pacific?

How about an example a bit closer to the present, like Somalia?

Compare the text of Republican-initiated bills in the 103rd Congress (for example H. Con. Res. 163 -October 7, 1993) with the AUMF-alike that was passed earlier in the same year (S.J. Res 45 -May 25, 1993)

The first question is whether they were right to do so or not.

The $64,000 follow-up question: if it was right for the GOP to suggest immediate withdrawal mid-fight


Representative Baker and his seven cosponsors for H. Con. Res. 163 were just as wrongheaded and despicable as Pelousi and Reed in offering their letter. I am not going to make excuses for politically motivated attempts to undercut the troops in the field no matter what little letter follows their name. I would never have voted for these fools again if they were in my district.

However, I would also observe that we are talking about 8 representatives out of a GOP caucus of about 220, a number which is hardly representative of the GOP as a whole. In contrast, the Dem leadership Pelousi and Reed offered this cut and run demand with the support of a majority of their Dem caucuses. Unlike H. Con. Res. 163, cut and run from Iraq is representative of the Dem position on Iraq.
 

Marty Lederman said...

HumbleLawStudent: Not exactly clear what your constitutional concern is. Is it identifying an Article I power? If so, we can start with the Declare War Clause (which includes the power to specify armed conflict limited in certain respects, see, e.g., Bas v. Tingy; Talbot v. Seeman)

In Bas and Talbot, the issue was whether a statute enacted by Congress authorizing executive military action was directed at France. To the contrary, the AUMFs authorizing military action against al Qaeda and its allies anywhere and terrorist groups in Iraq pretty clearly identify the enemy.

I do not see where these cases can be used as precedent for Congress assuming CiC authority by designating the amount of force to be used in Iraq. A declaration of war would require by definition that Congress designate the enemy against which we are going to war. Conversely, the term "declaration" in declaration of war plainly grants Congress the power to start a war and in no way encompasses directing the conduct of the war.

the Army and Navy Clauses (which likewise allow Congress to set the conditions on which the armed services will fight)

If you are referring to the clause allowing Congress "to raise and support armies," this clause refers to merely authorizes Congress to create military forces, not "to set the conditions on which the armed services will fight."

the Spending Clause

This is the only power which applies to this case. Congress could most likely defund the war in its entirely. However, the argument that Congress could use this provision to assume CiC powers to direct the conduct of that war is much more doubtful. Such an interpretation would effectively moot the executive CiC power.

the Rules for Government and Regulation Clause

If you are referring to the clause allowing Congress "to make rules for the government and regulation of the land and naval forces," this clause refers to establishing rules such as the UCMJ for the good order and discipline of the uniformed services. There is nothing in the text nor have courts interpreted this provision to grant Congress the power to assume the CiC power "to set the conditions on which the armed services will fight."

and the Necessary and Proper Clause.

The N&P clause is simply allows the Congress to enact laws to carry out enumerated powers in the Constitution, not to enact any law they thing is necessary and proper.

If your question is instead why Congress's Article I powers should trump the President's CIC power, well, that's a much more complicated matter. Suffice it to say for now that (i) virtually all precedent seems to point in that direction (see, e.g., Little v. Barreme; Rasul

Little, like Bas and Talbot, had to do with identifying the enemy against which Congress had authorized the use of force, not finding that Congress had the power to direct the conduct of that war.

Rasul held that Congress granted the court the power to exercise habeas jurisdiction over alien enemy combatants in a war.

I would note that the very truncated view of Executive war powers held by the Marshall court was at odds with the very expansive view of that power held by the FDR court in United States v. Curtiss-Wright and more recent courts which have cited the latter precedent.

(ii) Congress has historically asserted the power, such as in the Vietnam-era restrictions and the War Powers Resolution.

These actions are the exception to the pre Vietnam rule starting with the Mexican American War.

No President has ever recognized the constitutionality of the War Powers Resolution.

Frankly, the war powers provisions of the Constitution did not age well at all. The drafters figured that US military action would be limited to homeland defense and Congress would declare war raise armies to fight each war and then disband the army again when it thought the war was over. During the war, the Constitution grants the President the power to conduct the war as CiC. However, within a few years, Congress established a standing Army and Navy and our military operations quickly became international as we dealt with the fallout from the Barbary Pirates and the Napoleonic Wars. Out of sheer practicality, that shifted the initiative to the President as CiC of those standing forces.

Therefore, I would argue that under the Constitution, Congress' power to stop wars is limited to defunding or disbanding the military forces fighting them, a completely unacceptable outcome politically.
 

Bart writes:However, I would also observe that we are talking about 8 representatives out of a GOP caucus of about 220, a number which is hardly representative of the GOP as a whole.

what was the final vote on H. Con. RES 163? Wouldn't using that as a basis for asserting republican support for removal of forces from Somalia be more consistent? After all, you're making an assertion for what you slantedly refer to as democratic 'support for cut-and-run' and trying to portray republicans as not being supportive of cut and run in Somalia when in fact the majority of them voted for it IIRC, and democrats haven't even voted on what to do in Iraq yet. Logically, that's comparing a bird in the hand (republican majority voting in favor of cutting and running in Somalia) with two in the bush (what you imagine will be the majority of democrats voting for summary removal of all troops from Iraq - they're likely to, but its far from a given just yet).
 

House Majority Leader Steny Hoyer was on Fox News Sunday today and categorically ruled out defunding the war, called withdrawal a proposal from Pelousi and Reed (rather than the Dem position) which the President ought to consider and rejected complete withdrawal of troops in any redeployment which might occur. But, Hoyer did promise that the Dems would hold lots of hearings to express their "skepticism" of the President's as yet still unreleased plans for Iraq.

Senate Minority Leader Mitch McConnell maintained that there is very little Congress can do to "micro manage" the war except for cutting off funding, which he said no one supports.
 

bitswapper said...

Bart writes:However, I would also observe that we are talking about 8 representatives out of a GOP caucus of about 220, a number which is hardly representative of the GOP as a whole.

what was the final vote on H. Con. RES 163?


According to the government website, that resolution justifiably died in subcommittee. There was very little support for pulling the rug out from under the troops in Somalia.

Mr. Clinton made this reprehensible resolution effort moot when he pulled the troops out himself after panicking that the 24/7 coverage of enemy militia dragging a couple of our soldiers around in the street might hurt his poll ratings.

As an aside, you might want to read some of the interviews with the writer of the book Blackhawk Down as well as the director and producers of the movie. When they asked the Rangers to assist them in the making of the movie, the movie heads found that the Rangers involved in the Mog operation were extremely resentful about the way the government (both the Clinton Administration and these 8 GOP weasels) and the media had treated what they considered to be one of the great Ranger victories in history as some sort of ignominious loss. In fact, the Rangers and Delta had inflicted 1500 enemy KIA for the 19 they suffered in return during that battle against tremendous odds. The movie heads had to promise the Rangers that they would tell the story straight before the Rangers would consider helping out.
 

Bart: "This [Reid-Pelosi] letter is simply despicable. With troops in harm's way, you never ever show the enemy that you are divided and prepared to retreat from the field of battle."

Bart, you'd better come out against polling the US citizenry on their support for leaving Iraq. Seems about 70% of them are as "despicable" as Reid and Pelosi. What a setback it would be if the terrorists were to find THAT out!
 

FWIW, here is what Sen. Biden had to say about this general subject today on Meet the Press:

MR. RUSSERT: ...there’s really little Democrats can do. Why not cut off funding for the war?

SEN. BIDEN: I’ve been there, Tim. You can’t do it.

MR. RUSSERT: Why?

SEN. BIDEN: You can’t do it. It’s -— what -— because it made sense in the Constitution when you said you could cut off funding when you had no standing army. We have a standing army with a budget of hundreds of billions of dollars. You can’t go in and, like a tinker toy, and play around and say, “You can’t spend the money on this piece and this piece and”—he—able—he’ll be able to keep those troops there forever constitutionally if he wants to.

MR. RUSSERT: Why not have legislation then that would cap the number of troops in Iraq?

SEN. BIDEN: Because it’s very difficult to —- it’s constitutionally questionable whether or not you can do that. I think it is unconstitutional to say, “We’re going to tell you you can go, but we’re going to micromanage the war.” When we wrote the Constitution, the intention was to give the commander in chief the authority how to use the forces, when you authorize them, to be able to use the forces. ...

 

jao:

Wow. I am surprised that Biden, who is seeking the nomination of a party hell bent on withdrawal, had the guts to make that admission.
 

However, I would also observe that we are talking about 8 representatives out of a GOP caucus of about 220, a number which is hardly representative of the GOP as a whole. In contrast, the Dem leadership Pelousi and Reed offered this cut and run demand with the support of a majority of their Dem caucuses.

Remember that we're only talking about a single bill, not including the other bills that were raised at the same time with different language.

There's also:
H. Res 271 (6 sponsors)
H. Res 239 (45 sponsors)
H. R. 3292 (2 sponsors)
H. J. Res 275 (15 sponsors)
H. R. 3212 (18 sponsors, and introduced by Joel Hefley of Colorado's 5th District fame)

and the granddaddy cut and run bill:

H. Con. Res. 170 / H. Res. 293

which passed the House on a 390-8 vote.

I note that the bill was supported by Armey, Michel, and Gingrich--the Republican leadership in the House at the time.

I also note that at least one of the 5 Republican "Nays" to the bill (Rep. Mica) had previously introduced their own "pull out of Somalia" legislation.

This hardly then seems like an aberration of a mere percentage of the House GOP, and I think it well makes the point that the GOP can claim no high moral ground for insisting that talk of withdrawal is by nature treasonous. Saying that Somalia had no public support is insufficient; as other posters have noted, the Iraq war is not popular either.
 

Bart Depalma wrote:Mr. Clinton made this reprehensible resolution effort moot when he pulled the troops out himself after panicking that the 24/7 coverage of enemy militia dragging a couple of our soldiers around in the street might hurt his poll ratings.

...

As an aside, you might want to read some of the interviews with the writer of the book Blackhawk Down as well as the director and producers of the movie. When they asked the Rangers to assist them in the making of the movie, the movie heads found that the Rangers involved in the Mog operation were extremely resentful about the way the government (both the Clinton Administration and these 8 GOP weasels)


PMS_Chicago wrote: and the granddaddy cut and run bill:

H. Con. Res. 170 / H. Res. 293

which passed the House on a 390-8 vote.


Mr. Depalma, how is it that you characterized the withdrawal of troops from Somalia as panicked and reprehensible made solely by Clinton and 8 republicans, when in fact a majority of conservative republicans voted and passed a bill ordering Clinton to remove troops? Please enlighten us. Was Clinton just conforming to H. Con. Res. 170 / H. Res. 293 or not? Or should we just read interviews from Black Hawk Down and take that as the congressional voting record?
 

"Bart" DePalma says:

the Rules for Government and Regulation Clause

If you are referring to the clause allowing Congress "to make rules for the government and regulation of the land and naval forces," this clause refers to establishing rules such as the UCMJ for the good order and discipline of the uniformed services. There is nothing in the text nor have courts interpreted this provision to grant Congress the power to assume the CiC power "to set the conditions on which the armed services will fight."


IN the context of his continuing assertion that COngress can't regulate surveillance, "Bart" once insisted that the "rules for the government and regulation of the land and naval forces" clause extended only to writing a UCMJ, regulating the conduct and discipline of individual soldiers and sailors. I pointed out that by this token, pretty much the entirety of Title 10 outside of the UCMJ would be unconstitutional. "Bart" never responded.

Cheers,
 

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