Balkinization  

Tuesday, January 09, 2007

In (Electoral) Dreams Begin Responsibilities

Marty Lederman

Matt Yglesias and Ann Althouse "vlog" about the irony of the current legislative murk: Although the November elections were a referendum on the Iraq War, and although 45 percent of the electorate believes that "of all the problems facing the country today," the Iraq war is the one Congress should "concentrate on first" -- the economy and jobs collectively is second with seven percent support -- the Democratic majorities actually chosen in that referendum are now unwilling (indeed, some among them who should know better profess to be unable!) to do anything about that war other than to cajole and plead with the President and to hope that the Republican minority convinces the President to change course. (In fairness, there are many Democrats, such as Senator Kennedy (introducing legislation this morning) who are ready to step to the plate. But there's apparently a great deal of hand-wringing in certain parts of the caucus.)

As Yglesias notes, perhaps the best possible political and policy outcome for the Democrats would, indeed, be for Bush to de-escalate the war at the behest of Republicans, so that once the war is ended the Republicans can't thereafter carp, Vietnam-revisionism-like, that "We could have actually won the war if only those Democrats hadn't tied our hands!"

Fair enough.

But even if Yglesias is correct about the best of all possible worlds, and even if some Republicans begin pleading with Bush to reverse course, there's no reason to think this President would be at all inclined to listen, let alone to acknowledge the error of his ways. And if that's so, then, as Matt says, "there's something ghoulish about agreeing to appropriate money to finance a military occupation that you think should be ended and that you think is futile."

No, of course that doesn't mean that Congress should propse a bill cutting off all appropriations for the conflict immediately. The commonly-heard anxiety about Dems being accused of "abandoning our troops in Iraq" is grossly overstated: No one is remotely suggesting any statutory proposals that would strip troops on the ground of whatever is necessary for their safety and protection.

But Congress could simply vote for a law requiring withdrawals or redeployments on a particular timetable. (In 1973, for instance, Congress enacted a law effectively requiring withdrawal from Cambodia and Vietnam by a date certain (August 15, 1973). See Pub. L. No. 93-52, 87 Stat. 134 ("Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.") President Nixon didn't simply "abandon" those troops without authorization or funding -- he complied with the deadline, after having vetoed a bill requiring withdrawal six weeks earlier.)

Or, as at least one member of Congress will propose this morning, Congress could vote for a bill refusing appropriations for increases in troop levels in Iraq.

Will Bush veto such a bill? Perhaps (depending on what else is in it). Will he ignore it if it is enacted? Well, when it comes to respect for statutory law, let's just say that Bush is no Richard Nixon. Could the courts enforce such a law if Bush refuses to enforce it by spending funds that are not appropriated? Yglesias and Althouse seem to assume that the Supreme Court would not intervene. I'm not so sure -- in any event, the Court surely could intervene.

But even if it would be difficult to enforce such a law does not mean it shouldn't be enacted. A situation in which the President must openly violate the law, and spend unappropriated funds, in order send more troops to Iraq, wouldn't be such a bad thing as opposed to the alternative, at least in terms of political accountability. And it certainly is no justification for Congress to abandon its constitutional role.

Indeed, it's important for Congress to step up to the plate here not only because the practical stakes are so high, but also precisely because the President is so dismissive of ordinary checks and balances. It's hard to improve here on Josh Marshall's comments this morning:
The way this is "supposed" to work is that when the president takes a dramatic new direction like this he consults with Congress. That way, some relative range of agreement can be worked out through consultation. National unity is great. Or at least that's the theory.

But here we have a case where the president's party has just been thrown out of power in Congress largely, though not exclusively, because the public is fed up with the president's lies and failures abroad. (Indeed, at this point, what else does the Republican party stand for but corruption at home and failure abroad? Small government? Please.) The public now believes the war was a mistake. Decisive numbers believe we should start the process of leaving Iraq. And the public is overwhelmingly against sending more troops to the country. The country's foreign policy establishment (much derided, yes, but look at the results) is also overwhelmingly against escalation.

And yet, with all this, the president has ignored the Congress, not consulted the 110th Congress in any real way, has ignored the now longstanding views of the majority of the country's citizens and wants to plow ahead with an expansion of his own failed and overwhelmingly repudiated policy. The need for Congress to assert itself in such a case transcends the particulars of Iraq policy. It's important to confirm the democratic character of the state itself. The president is not a king. He is not a Stuart. And one more Hail Mary pass for George W. Bush's legacy just isn't a good enough reason for losing more American lives, treasure and prestige.

Comments:

Is Congress really abandoning its constitutional role? The Founders seemed to think Congresses are plagued by the problems of the anticommons when it comes time to make tough decisions, which is why in the conduct of foreign affairs and prosecution of war there is one, ultimate decision-maker. It seems Congress is expected to wring its hands and do-nothing, while the President is obligated make the tough, unpopular decisions. That's what nations elect Presidents to do. Generally-speaking, it is better to have war by a general than war by a committee of lobbyists.
 

No one is remotely suggesting any statutory proposals that would strip troops on the ground of whatever is necessary for their safety and protection.

Why wouldn't such proposals be unconstitutional for the President to execute?
 

"Generally-speaking, it is better to have war by a general than war by a committee of lobbyists."

And based on this you're saying that the President should get to do whatever he wants? Nope, you're statements makes clear that generals should lead a war. Let's turn over to Generals Casey and Abizaid. More troops, generals? No. Oh, well, what the hell: replace the Generals.
 

Marty Lederman

But Congress could simply vote for a law requiring withdrawals or redeployments on a particular timetable. (In 1973, for instance, Congress enacted a law effectively requiring withdrawal from Cambodia and Vietnam by a date certain (August 15, 1973). See Pub. L. No. 93-52, 87 Stat. 134 ("Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.") President Nixon didn't simply "abandon" those troops without authorization or funding -- he complied with the deadline, after having vetoed a bill requiring withdrawal six weeks earlier.)

This bill was negotiated between the White House and Congress after the President had already withdrawn from his Cambodia incursion to cut off Soviet Arms and supplies from proceeding along the Ho Chi Minh Trail to the Viet Cong and NVA in South Vietnam.

Mr. Bush is much more likely to simply ignore any unconstitutional restrictions imposed by Congress and dare them to sue in court.

Or, as at least one member of Congress will propose this morning, Congress could vote for a bill refusing appropriations for increases in troop levels in Iraq.

I expect Bush to preempt this strategy before it can be executed. General Petraeus will testify before Congress that he needs more troops to win the war. Additionally, they have already begun feeding the press with quotes from several Dems including Pelousi demanding more troops in the past. Consequently, I anticipate Mr. Bush arguing that whose who would deny funding are denying the military the troops they requested to win the war, point out past Dem support for this option, and peel off the 60 or so Blue Dog Dems who are from conservative districts to vote for funding.

In the unlikely event such a bill with status quo appropriations was passed, it would be fascinating to see how the President would treat it.

Most likely, Mr. Bush would follow Mr. Clinton's strategy during the budgetary feuds leading up to the 1996 elections where he vetoed appropriations bills for providing insufficient money and then successfully blamed the GOP Congress for shutting down the government.

Less likely, Mr. Bush shifts funds from other accounts to pay for a deployment. Depending on the budgetary language, such a course of action could very well be illegal and very likely counter productive for the military. I do not see Mr. Bush going down this road.

Indeed, it's important for Congress to step up to the plate here...

If I placed the interests of the country aside and looked at this purely as a GOP partisan, I would agree with you.

The Dem left is pressuring their leadership to act to force a withdrawal and surrender in Iraq.

They are incorrectly pointing to the shift of a handful of seats in Congress as a referendum in favor of their cut and run plan when it really involved some razor thin electoral victories in districts and states where the GOP incumbent had corruption problems. The only race where the dueling war plans were front and center was in CN, where the hawk Lieberman clobbered the dove Lamont in a deep blue state.

The old school left Dem leadership did not need too much urging to advance this cut and run plan because they also support it. However, a large part of their caucus has been elected on center to center right platforms since 1994 and does not share this view.

Thus, Mr. Bush has set an elephant trap for the Dems by asking for more troops and changing the command structure to insert those who support a surge. If the Dems try to limit funding or better yet demand a withdrawal against the wishes of the new generals, they cannot avoid confirming the general post Vietnam view of them as the party of retreat and defeat. Worse yet, the Blue Dogs will probably abandon the party out of self preservation and vote for funding.

The worst of both worlds for Dems would be to call for retreat and defeat and then fall short of votes to force it when the Blue Dog Dems bail and vote for funding. They will confirm the label of retreat and defeatists while showing nothing for the effort.

Dems should not seek solace in the fact that polls reveal the nation to be war weary. The polls during the later stages of Vietnam were much worse and the Dems were still blamed for losing Vietnam because the voters are not going to blame themselves.

Most Dems are not stupid and can see this trap, but their base is giving them no peace on the matter. Look at the posts on this blog and others. Thus, the Dems can be excused if they seem confused as to which way to go.
 

Guess we'll find out
 

FWIW, Sen. Kennedy is proposing legislation aimed at reining in the troop surge, according to Boston Globe columnist Scot Lehigh:

Today the Massachusetts senator will introduce legislation to prevent the president from increasing US troop levels in Iraq without specific authorization from Congress. And in a speech at the National Press Club one day before the president outlines his new Iraq plans to the nation, Kennedy will take aim at the idea of sending more troops. ...

Kennedy's bill wouldn't cut off funding for troops already in Iraq; rather, it would prohibit the administration from using federal funds to increase US troops beyond the levels there on Jan. 1 of this year without specific congressional approval.


Perhaps Kennedy's bill is what Marty references above ("... at least one member of Congress will propose this morning ..."). In any event, it seems to fit the description.
 

Also relevant here are the Somalia and Lebanon resolutions, both of which set an expiration date for the authorized deployment of US troops.
 

And based on this you're saying that the President should get to do whatever he wants? Nope, you're statements makes clear that generals should lead a war.

At no point in time did I say that the President should always in all things get whatever he wants. You might learn to read.

The President is the top general of the armed forces. He is the general that leads the war. Even theorists who believe in a weak Executive assert that is what being Commander-in-Chief means.

FYI, "you're" = "you are".
 

"Bart" DePalma lives on a different planet:

They are incorrectly pointing to the shift of a handful of seats in Congress as a referendum in favor of their cut and run plan when it really involved some razor thin electoral victories in districts and states where the GOP incumbent had corruption problems....

"It's only a movie... It's only a movie...." ROFLMAO.

... The only race where the dueling war plans were front and center was in CN, where the hawk Lieberman clobbered the dove Lamont in a deep blue state.

"Clobbered". Not exactly. The de facto Republican candidate was Lieberman (just as he was when the Republicans decided to punish the far-too-independent Weicker when Lieberman first got his Senate seat); virtually no one can remember who the erstwhile Republican candidate was (Schlesinger), and the Repugs put all their efforts (and money) into electing Lieberman. "Bart" likes to pretend that it was Lieberman's pro-war stance that got him elected, but in fact, it was despite Lieberman's pro-war stance that he got in (and Lieberman had to pretend that he was opposed to the war just to slide by); MOTR folks voted for the "tried and true", and the Republicans backed Lieberman to the hilt. Connecticut is not only a blue state, but an anti-Iraq-war state. And it's abbreviated "CT"....

Cheers,
 

Other bit of news for Bart:

All the CT Republican congressional incumbents except for the liberal (and anti-war) Shays went down to defeat.

Cheers,
 

"Bart" DePalma says:

Dems should not seek solace in the fact that polls reveal the nation to be war weary. The polls during the later stages of Vietnam were much worse and the Dems were still blamed for losing Vietnam because the voters are not going to blame themselves.

"Bart" speaks ex cathedra. If he blames the Democrats, why, yes, then everyone must blame the Democrats.....

Cheers,
 

Mortimer Brezny says:

The President is the top general of the armed forces. He is the general that leads the war. Even theorists who believe in a weak Executive assert that is what being Commander-in-Chief means.

What happened to the argument that the stipulation that the preznit should be CinC was (in part) an argument that the military should be under civilian control?

Cheers,
 

Arne,

I don't see how that isn't synonymous with what I wrote. I never said the top general can't be a civilian. Indeed, as you point out, the whole point is that the top general is a civilian and need not have arisen out of the military ranks. We're making the same argument.
 

Mortimer Brezny:

I don't see how that isn't synonymous with what I wrote. I never said the top general can't be a civilian. Indeed, as you point out, the whole point is that the top general is a civilian and need not have arisen out of the military ranks. We're making the same argument.

OK, fair 'nuff. But if this is the thrust of the Article II language, it takes some of the wind out of the sails of those that insist that this language precludes (and was intended to preclude) Congressional oversight of military campaigns.

Cheers,
 

As you are probable quite aware Mortimer, I was commenting on your juxtaposition of "the general" vs. "committee of lobbyists". Apparently in your fantastic wordview the president is free from any but military reasoning, while congress is being ruled by lobbyists. You make sure to start a thread out with short comments that are deliberately vague, so that you can attack someone that fills in the blancs.
 

Mort: On an older thread you corrected my impression of the results of googling for your name. Thanks for the correction. I would have to read more deeply to dispute your self-description and cannot imagine why you would be other than frank with matters so easily checked, so I take your words at face value. It remains to be understood why my impression of you to date remains so at odds with the person you seem to be describing yourself to be. I make this statement here in hopes of it being seen by you. As a point of honor I need to acknowledge your post.
 

Bart:

General Petraeus will testify before Congress that he needs more troops to win the war. Additionally, they have already begun feeding the press with quotes from several Dems including Pelousi demanding more troops in the past. Consequently, I anticipate Mr. Bush arguing that whose who would deny funding are denying the military the troops they requested to win the war, point out past Dem support for this option, and peel off the 60 or so Blue Dog Dems who are from conservative districts to vote for funding.

Past statements that we had too few troops and present resistence to a "surge" are not incompatible at all. The point is that counter-insurgency is a labor-intensive business. General estimates are that to secure a country the size of Iraq we will need at least 500,000 troops. If we had 500,000 troops to deploy, all equipped and trained for counter-insurgency then I personally (though perhaps not everyone here) would agree to give them a chance.

But we do not. We have 140,000 troops and are discussing escalating by 20,000 more. What is the point?
 

Enlightened Layperson said...

Past statements that we had too few troops and present resistence to a "surge" are not incompatible at all. The point is that counter-insurgency is a labor-intensive business. General estimates are that to secure a country the size of Iraq we will need at least 500,000 troops. If we had 500,000 troops to deploy, all equipped and trained for counter-insurgency then I personally (though perhaps not everyone here) would agree to give them a chance.

Pelousi was not saying we needed to send in 500,000 troops. She was merely parroting the Dem talking point of the day in knee jerk reaction to a Bush argument that we did not need additional troops.

As an aside, the 500,000 figure is predicated on having to pacify the entire country. However, the 80 percent of the population consisting of Shia and Kurds are not in rebellion. The problem are Iraqi Sunni and al Qaeda foreign Sunni, which are operating in the 20% of the population which is Sunni. 20% of the 500,000 figure is 100,000 troops.
 

Bart,

So, then, if we already have more than enough troops to subdue the 20% of the population that is in rebellion, what is the problem?

The problem is twofold. First, as suicide bombers have demonstrated, 20% of the population in rebellion can pose a grave danger to the other 80%. The remaining 80% have to be protected.

Second, although the Shiites are not technically "in rebellion" because they control the government, they are certainly causing their share of the carnage. Every day victims of Shiite death squad are found littering the streets with power drills driven through their skulls. Doubtless some of these are thugs and murderers. Others are guilty only of belonging to the wrong religion. Outside of Kurdish areas, there is no safety for anyone, Sunni or Shiite.

For those of us who consider this unacceptable, "securing" Iraq means securing the population from Shiite death squads as well as Sunni insurgents. And that will take far more troops than Bush's intended "surge."
 

Thanks, Robert.
 

Enlightened Layperson said...

Bart, So, then, if we already have more than enough troops to subdue the 20% of the population that is in rebellion, what is the problem?

The problem is twofold. First, as suicide bombers have demonstrated, 20% of the population in rebellion can pose a grave danger to the other 80%. The remaining 80% have to be protected.


You have put your finger on an important point. The 500,000 figure was a calculation of the number of troops it would take to defeat a traditional insurgency seeking to take over the government.

However, we are not dealing with a traditional insurgency here.

To start, then enemy has no chance of winning a guerilla war against the government. The enemy has the support of maybe 1/2 of the 20% of population which happens to be Sunni. On its best day, the members of the insurgency might amount to 20,000 which have never assembled in much more than company size (120 man) units. In contrast, the government fields around 200,000 soldiers who have conducted successful brigade size (3000 man) operations.

Rather, the enemy has resorted to a terror mass murder campaign against civilians ala the IRA, ETA and the Palestinians. However, such a campaign has never succeeded in taking power.

Our goal in Iraq cannot be to protect all civilians. This task is simply impossible because there are too few troops in our entire army to provide static security for 23 million Iraqis. No military has been able to stop a terrorist campaign against a civilian population to date by engaging in passive security.

Rather, our goal should be to hunt the terrorists with the Iraqi military providing most of the bodies until the Iraqi government and military is stable enough to take over that job itself. I strongly disagree with any strategy which simply has our troops patrolling on streets so the enemy can take pot shots at us. Let the Iraqis do that. Rather, our troops excel at offensive clearing operations such as the sweep of Fallujah which largely pacify an area. We should be doing this in Baghdad.

Second, although the Shiites are not technically "in rebellion" because they control the government, they are certainly causing their share of the carnage.

While the Shia are engaged in revenge killings, they are not a threat to the government or military in Iraq. I have been wondering whether it would be better for the US to simply takes sides with the Shia and help them clean out the Sunni Baathists and al Qaeda. However, we are supporting a "unity government" to keep the Sunni Saudis and Gulf States happy. This is a tough geopolitical balancing act which has no easy solution so long as the Sunni refuse to recognize that they have been defeated and join the government as a minority.

One last observation. Cutting and running from the problem in Iraq does not solve the problem. After cutting out of Somalia, we are back in there again dealing with the same bad guys. Better to do it the first time.
 

Da Palmer... The problem are Iraqi Sunni and al Qaeda foreign Sunni, which are operating in the 20% of the population which is Sunni. 20% of the 500,000 figure is 100,000 troops.

They are just the "dead enders".


However, we are not dealing with a traditional insurgency here.

They are just "dead enders".

Da Palmer is an expert on insurgencies.

To start, then enemy has no chance of winning a guerilla war against the government. The enemy has the support of maybe 1/2 of the 20% of population which happens to be Sunni. On its best day, the members of the insurgency might amount to 20,000 which have never assembled in much more than company size (120 man) units. In contrast, the government fields around 200,000 soldiers who have conducted successful brigade size (3000 man) operations.

Rather, the enemy has resorted to a terror mass murder campaign against civilians ala the IRA, ETA and the Palestinians. However, such a campaign has never succeeded in taking power.



He's been repeating this clap trap since the days before he was banned at Glenn's when he was saying victory was just "around the next corner". It's not a waste of time if you consider it an exercise, but remember E.P., none of this clap trap has any basis in fact.
 

"Bart" DePalma says obliviously:

Better to do it the first time.

Ummm, do what "the first time"?

Secure the ammo dumps rather than the Oil Ministry? Put enough troops on the ground to defuse a nascent insurgency? Not toss out a hundreds thousand of people with arms onto the streets with no jobs and no prospects?

To tell the truth, given the advance coverage on the speech tonight, I don't think that Dubya can even get it right the second ( or is it third? Fourth? Fifth? Can't remember how many corners we've turned....) time. He's doing the same damn thing he did before ... in spades.

"When you're in a hole...."

Cheers,
 

@mort: I like to think I've worked out a manageable peace with HLS despite having wildly divergent views, and the graciousness of your simple reply leaves me hope of doing the same with you over time. I'd be thrilled to get personal email toward that end; my info is available at my blogger profile. Peace.
 

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