an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What Would the Iraq Redeployment Bills Actually Do, Anyway?
One salutary effect of the blogosphere is that it has prompted the mainstream media to more frequently link to primary documents -- e.g., leaked memos, government reports, etc. -- that are the subject of their breaking stories. It was not too long ago that the public lacked ready access to the very subject matter of many important news stories -- not without difficult and time-consuming library retrieval, anyway.
One oddity, however, is that it remains rare for newspapers and other outlets to link to, or even quote from, important legislation being considered in Congress, even when it's the grist for front-page stories. The recent legislative debates concerning proposals to hasten withdrawal from Iraq are a prime example. I've yet to see a single newspaper article online that actually links to or quotes from the provisions that have been the subject of such heated debate in Washington over the past few weeks. It's odd to expect the public to be able to meaningfully understand and debate these important initiatives without knowing what they say.
It will only be a matter of time before such linking becomes commonplace in leading mainstream newspapers online.
Meanwhile, here's the relevant language about Iraq withdrawal in the current House and Senate bills, best I can tell. (If this isn't the right language, please let me know.):
SEC. 1904. (a) The President shall make and transmit to Congress the following determinations, along with reports in classified and unclassified form detailing the basis for each determination, on or before July 1, 2007:
(1) whether the Government of Iraq has given United States Armed Forces and Iraqi Security Forces the authority to pursue all extremists, including Sunni insurgents and Shiite militias, and is making substantial progress in delivering necessary Iraqi Security Forces for Baghdad and protecting such Forces from political interference; intensifying efforts to build balanced security forces throughout Iraq that provide even-handed security for all Iraqis; ensuring that Iraq's political authorities are not undermining or making false accusations against members of the Iraqi Security Forces; eliminating militia control of local security; establishing a strong militia disarmament program; ensuring fair and just enforcement of laws; establishing political, media, economic, and service committees in support of the Baghdad Security Plan; and eradicating safe havens;
(2) whether the Government of Iraq is making substantial progress in meeting its commitment to pursue reconciliation initiatives, including enactment of a hydro-carbon law; adoption of legislation necessary for the conduct of provincial and local elections; reform of current laws governing the de-Baathification process; amendment of the Constitution of Iraq; and allocation of Iraqi revenues for reconstruction projects; and
(3) whether the Government of Iraq and United States Armed Forces are making substantial progress in reducing the level of sectarian violence in Iraq.
(b) On or before October 1, 2007, the President--
(1) shall certify to the Congress that the Government of Iraq has enacted a broadly accepted hydro-carbon law that equitably shares oil revenues among all Iraqis; adopted legislation necessary for the conduct of provincial and local elections, taken steps to implement such legislation, and set a schedule to conduct provincial and local elections; reformed current laws governing the de-Baathification process to allow for more equitable treatment of individuals affected by such laws; amended the Constitution of Iraq consistent with the principles contained in article 137 of such constitution; and allocated and begun expenditure of $10 billion in Iraqi revenues for reconstruction projects, including delivery of essential services, on an equitable basis; or
(2) shall report to the Congress that he is unable to make such certification.
(c) If in the transmissions to Congress required by subsection (a) the President determines that any of the conditions specified in such subsection have not been met, or if the President is unable to make the certification specified in subsection (b) by the required date, the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq and complete such redeployment within 180 days.
(d) If the President makes the certification specified in subsection (b), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq not later than March 1, 2008, and complete such redeployment within 180 days.
(e) Notwithstanding any other provision of law, funds appropriated or otherwise made available in this or any other Act are immediately available for obligation and expenditure to plan and execute a safe and orderly redeployment of the Armed Forces from Iraq, as specified in subsections (c) and (d).
(f) After the conclusion of the 180-day period for redeployment specified in subsections (c) and (d), the Secretary of Defense may not deploy or maintain members of the Armed Forces in Iraq for any purpose other than the following:
(1) Protecting American diplomatic facilities and American citizens, including members of the U.S. Armed Forces.
(2) Serving in roles consistent with customary diplomatic positions.
(3) Engaging in targeted special actions limited in duration and scope to killing or capturing members of al-Qaeda and other terrorist organizations with global reach.
(4) Training members of the Iraqi Security Forces.
(g) Notwithstanding any other provision of law, 50 percent of the funds appropriated by title I of this Act for assistance to Iraq under each of the headings ``IRAQ SECURITY FORCES FUND'', ``ECONOMIC SUPPORT FUND'', and ``INTERNATIONAL NARCOTICS CONTROL AND LAW ENFORCEMENT'' shall be withheld from obligation until the President has made a certification to Congress regarding the matters specified in subsection (b)(1).
(h) The requirement to withhold funds from obligation pursuant to subsection (g) shall not apply with respect to funds made available under the heading ``ECONOMIC SUPPORT FUND'' for continued support for the Community Action Program and Community Stabilization Program in Iraq administered by the United States Agency for International Development or for programs and activities to promote democracy in Iraq.
Thus, under the House bill, if the President fails to certify on specified dates that certain Iraqi benchmarks have not been met, redeployment of the Armed Forces from Iraq must begin, and must be completed in 180 days. More importantly, even if the President makes the requisite "benchmark" findings, redeployment must commence by March 1, 2008 and be complete by August 28, 2008.
SEC. 1315. REVISION OF UNITED STATES POLICY ON IRAQ. (a) Findings.--Congress makes the following findings:
(1) Congress and the American people will continue to support and protect the members of the United States Armed Forces who are serving or have served bravely and honorably in Iraq.
(2) The circumstances referred to in the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243) have changed substantially.
(3) United States troops should not be policing a civil war, and the current conflict in Iraq requires principally a political solution.
(4) United States policy on Iraq must change to emphasize the need for a political solution by Iraqi leaders in order to maximize the chances of success and to more effectively fight the war on terror.
(b) Prompt Commencement of Phased Redeployment of United States Forces From Iraq.--
(1) TRANSITION OF MISSION.--The President shall promptly transition the mission of United States forces in Iraq to the limited purposes set forth in paragraph (2).
(2) COMMENCEMENT OF PHASED REDEPLOYMENT FROM IRAQ.--The President shall commence the phased redeployment of United States forces from Iraq not later than 120 days after the date of the enactment of this Act, with the goal of redeploying, by March 31, 2008, all United States combat forces from Iraq except for a limited number that are essential for the following purposes:
(A) Protecting United States and coalition personnel and infrastructure.
(3) COMPREHENSIVE STRATEGY.--Paragraph (2) shall be implemented as part of a comprehensive diplomatic, political, and economic strategy that includes sustained engagement with Iraq's neighbors and the international community for the purpose of working collectively to bring stability to Iraq.
(4) REPORTS REQUIRED.--Not later than 60 days after the date of the enactment of this Act, and every 90 days thereafter, the President shall submit to Congress a report on the progress made in transitioning the mission of the United States forces in Iraq and implementing the phased redeployment of United States forces from Iraq as required under this subsection, as well as a classified campaign plan for Iraq, including strategic and operational benchmarks and projected redeployment dates of United States forces from Iraq.
The Senate provision therefore is a bit more of a "soft" requirement than that found in the House bill: The President would be required to "promptly transition the mission of United States forces in Iraq" to the specified "purposes"; and he would also be required to "commence the phased redeployment of United States forces from Iraq" within four months of the statute's enactment; but the redeployment of all combat forces by March 31, 2008 (with specified exceptions) would only be a required "goal" of executive action, not a firm mandate for execution.
The House passed its bill last Friday; the Senate will vote on its bill this week. They would then have to be reconciled in conference, and approved again by both houses. The President has threatened to veto the bill if it contains either of the two redeployment provisions. Posted
by Marty Lederman [link]
In other words, we're supposed to rejoice because they barely passed a meaningless symbolic gesture that Bush will veto anyway.
A dirty little secret of the news business is that reporters -- especially political reporters and legislative generalists, as opposed to subject-matter beat specialists -- seldom even read legislation. They tend to rely on handouts, Hill staff, word-of-mouth paraphrases and secondary sources to say what a bill's provisions actually mean. These sources are often wrong, and sometimes deliberately spinning. The reporters -- even those from top-tier news organizations -- are usually not biased, just lazy and ignorant.
I'll bet lots of reporters learned the wrong lesson from the CBS fake memos issue from the 2004 campaign. They have realized CBS would have gotten away with the forgery had they simply quoted the memos and NOT published them online. Publishing them allowed them to be debunked.
My point being that reporters will both be lazy (not linking to stuff they haven't read, even though it is relevant) and venal (not linking to relevant stuff they HAVE read, because it hurts their case).
I suggest that yours is an excellent example of how lamentable is reporters' failure to read and understand the official documents. As I understand it, the provision you mention was slipped into the conference report, which typically would have been published in the Congressional Record. A detail-oriented reporter could have blown the whistle at the time.
Perhaps the most egregious example of misreporting in my recent memory was Sen. Specter's FISA "compromise" last year, which clearly was a very different bill than his rhetorical spin -- and the big time media -- described. Only in blogs such as this one and Volokh was it possible to find accurate analysis of the bill's provisions.
The comment about near realtime availability, and longterm archival by news media, of draft language for legislation, is a complex topic. The Balkinization blog is the only site I know which consistently provides that utility. Reasons why other websites seem less conscientious, more narrow, and have many drawbacks even more detrimental to public dialog are numerous, though if I succeed in writing a responsive essay to examine the disarray of those other sources and reasons why status quo is morphing into a more participatory paradign, I will make an effort to draft a preview for Balkinzation, provided its reference documentation and footnoting seem sufficiently ample to warrant submission. For now, though, I think we all appreciate the expansions in Balkinization, and even its publication of its own topics index with intrasite links, as the state of the art for understanding what congress and the president are doing in as close to realtime as possible given the state of the internet, and the condition of our own personal time limitations and schedules concomitantly.