Balkinization: The Constitution in Matters of War-- No Checks, No Balances

Comments:

The phenomena might be viewed as a form of "risk aversion." It's easier for Congress to be a critic, than to be seen as setting the lead.
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For example, the recent FISA revisions, like the war in Iraq, were driven by the risk of attack against the US. As though any amount of invasive government can prevent all attacks - yet Congress doesn't want to be holding the bag when the inevitable attack occurs.

# posted by

cboldt : 11:59 AM

Jack: How is this a problem with the system, rather than with the current political parties?

If the Democrats wanted to, they could vote to end the war today. To be sure, Bush would then have the power of the veto (arguably, anyway -- the constitutionality of section 5(c) of the WPR has never quite been resolved). But then when he uses it, why wouldn't that be the system working as it ought to, with the President taking the responsibility for rejecting the views of strong majorities in the public and in both houses?

# posted by

Marty Lederman : 12:42 PM

If the Democrats are right, then the fault lies, not with our constitutional constellation, but with ourselves.

Nationalism and war are a heady mix, and the Dems fear that rather than being applauded for ending an unpopular war, they will be jeered for ensuring our "defeat" in Iraq.

The public, I suspect, wants to have its cake and eat it to. Yes, let's get out of Iraq; no, we don't want things in Iraq to go to hell in a handbasket.

Once we're out, and coverage dwells on what a disaster Iraq is, Dems fear they'll be blamed.

Now, is that a problem with the American people, or with the Dems -- who are congenitally incapable of explaining anything to the public? I'm not sure.

# posted by

Anderson : 12:47 PM

While Article II does provide the President plenary power over all aspects of prosecuting a war apart from those powers expressly granted Congress in Article I, I suggest that you understate the power of the purse.

Funding a war takes an affirmative act of Congress which cannot be blocked by a Congressional minority or vetoed by the President. If the Dem congressional majority was united about ending the war (which they are not), they simply need to enact a bill which provides money for a six month retreat from Iraq and makes clear that there will be no more additional supplemental funding bills. If the GOP filibusters or the President vetoes this bill, they cannot compel the Dems to provide the money they demand and the war is effectively defunded by inaction.

The problem with using the power of the purse to compel a surrender of Iraq to the enemy is that the public would not support such a move. While polling shows that the public is tired of the war, they do not support surrender or cutting off the troops. That is how the President keeps winning these showdowns without breaking a sweat.

This issue is properly a matter for a Presidential election. The 2008 Dem candidate can campaign on surrender like the Dem McClellan did in 1864 while the 2008 GOP candidate can campaign on pressing on to victory as Lincoln did and we will see which policy the voters support.

# posted by

Bart DePalma : 1:32 PM

Congress approved the use of military force against Iraq. It wasn't a unilateral decision by the President. Matters have gone badly. Congress is divided about what would be the right course of action now. The public (big surprise!) gives somewhat inconsistent answers to poll questions and generally expresses a variety of divergent views.

Under those circumstances, the executive is necessarily going to decide what to do, because no one else will. I don't see how a change in the Constitution (short of an abolition of separation of powers) would change that.

Of course this situation is frustrating for the faculty of Yale, which might have been divided on September 12, 2001 but is now overwhelmingly antiwar. But the United States government is not designed to reflect the views of the Yale faculty.

# posted by

sean : 1:41 PM

We have to break out of the Steel Seizure Case paradigm, the 'waxing and waning' of Executive Constitutional power.

# posted by

Anonymous : 2:30 PM

"How is this a problem with the system, rather than with the current political parties?"

If there is anything to learn from economics, it is that bad outcomes that involve a large number of people are almost entirely the product of bad institutions and bad incentives. Congress unquestionably fits this description. The two political parties are shaped by those institutions and incentives, so blaming the political parties is just a round about way of blaming the system.

# posted by

jsalvati : 11:09 PM

It's odd how many of the comments find fault with the politicians and not our institutions. If we had a parliamentary system, Bush would no longer be president. The ratcheting up of executive power noted in Charlie Savage's post is common to presidential systems in other corners of the world. We are just late bloomers constitutionally speaking in understanding that presidentialism is a defective form of government. Miguel

# posted by

Miguel Schor : 8:30 AM

Indeed, Democrats could force the issue only by cutting war funds. Bush would veto that, and the Democrats don't have the votes to override. Which outcome would be more than just a defeat; it'd look like Democratic vacillation to an electorate that doesn't grasp the far greater power needed to override a veto. Recall that the Democrats have already been through that scenario once with respect to this war, and got their heads handed to them for their trouble.

I think, morally unsatisying as this may be, that they are now going to be quite pragmatic in the face of an upcoming election, and are strongly inclined to use the bully pulpit while letting Bush stew in his own war juices. This of course will only delay the day of reckoning and cause more human grief in the Mideast, but politically speaking Bush can run out the clock, now.

Of course, if this strategy works and the Democrats reclaim the White House, Iraq will suddenly become THEIR war, just as Vietnam became Nixon's war. But there's no way around that at this point anyway.

In short: Democrats are doing the math. We can be upset with them for not being more action-oriented at this point. But there is a logic to their current approach.

Iit's rather like medics performing triage on a battlefield: You can try to save everyone and lose them all, or you can focus on saving the few that have the most chance of surviving. Right now, the Democrats are forced to focus on the few ideas that most matter. Rail at them for this all you like, but always remember that it was Bush and the GOP that all but single-handedly set up this no-win situation.

And that was no accident. The neocon mindset LIKES no-win situations, because chaos serves their tear-down-government and bogeyman approach to public policy. Even while the next Democratic administration tries to pick up the pieces, the neocons will be busy trying to interdict their every effort. This, sadly, is now the lot of the real adults dealing with the children in our political process.

# posted by

Man MKE : 9:26 AM

Democrats should be taking every opportunity to re-label Iraq 'Bush's War' so as to have the memory of his failure linger after his exit from the White House.

# posted by

Mr.Poindexter : 10:16 AM

surrender of Iraq

Bart, stop using the word "surrender" to describe a withdrawal from Iraq. Surrender has a specific meaning in wartime. It means waiving the white flag, putting down your weapons, and being taken prisoner by the enemy. It means formally renouncing your right to wage warfare.

If you want to use "retreat"-- which is also a word with a negative connotation and which you also used-- that's fine. "Withdrawal" would be better, but I don't expect you to eschew all spin. But NOBODY is advocating a surrender. Nobody. And you know that damned well. You only use that term because you care more about its emotive value than you do in accuratly describing your opponents' position.

# posted by

Dilan : 2:39 PM

dilan:

An army can surrender territory as well as itself to the enemy. The Dem left is proposing the former as I have accurately described.

A "retreat" or a "withdrawal" is generally considered to be a temporary tactical event compelled by superior enemy forces before resuming the offensive to win the war. In the military, we were taught never to retreat unless there was no other choice to save our unit from destruction. In this case, the enemy does not have the capability to defeat our units at any level and force them to retreat. Rather, this is a case of a political party attempting to order the military against its will to surrender territory to the enemy.

The favorite euphemism used by the Dem left is "redeployment," which creates the false impression that the Dems are proposing to move US forces from one ground war to another against the same enemy, when in fact the Dems are proposing to force them home in defeat.

Why can't the Dem left be honest about what they are proposing? If they are ashamed to be up front about their plans, maybe their consciences are trying to tell them something.

This phenomenon came into stark relief when Dem Representatives James Moran and Ellen Tauscher visited the Green Zone in Iraq to show their "concern for the troops" and found that their visit had been preceded by a flyer quoting their anti war speeches. Rather admitting to the troops that it was their opinion that the enemy had defeated them (which was ridiculous on its face), Moran and Tauscher whined about being "slimed in the Green Zone." It is a mystery to me how one can be "slimed" by his or her own words.

# posted by

Bart DePalma : 4:57 PM

The idea that Democrats need a "veto proof majority" to cut off war funds is a red herring. In fact, they don't even need a majority in the Senate. All they need is 41 Senators (enough to sustain a filibuster) or 218 house members. Congress doesn't need to pass a bill cutting off funds for the war, all they have to do is refused to pass future funding. 41 Senators are sufficient to do that.

The Democrats could have ended the war during every budget vote since it began, if they were willing to face the political consequences of doing so. Clearly they are not. The problem here is a political rather than constitutional one. Congress has the bigger stick, but they are unwilling to use it. If this were the case of an irresistible force against an immovable object, the war would be over already. In reality, the administration is irresistible, but congress is not immovable.

# posted by

Blackeagle : 5:50 PM

Bart:

I think you have a good point about "redeployment", which I don't like either. It sounds like one of those military euphamisms like "operational exhaustion" or "collateral damage". (Even worse than "redeployment" is "phased redeployment". Yuck.)

But "surrender", while it CAN refer to territory, really calls up images of white flags, laying down arms, being taken prisoner, etc. E.g., Appomattox Courthouse. (Also, remember that the Iraqi government is the ostensible sovereign, not us. So we wouldn't be surrendering anything, as the Iraqi government would still be the ostensible sovereign.)

And I also don't agree that withdrawal implies anything temporary. (Retreat does-- but you actually used retreat in your post.) One difference is that withdrawal does not involve a disavowal of any future right to go back in, whereas surrender does imply that. And, again, liberals are not advocating that we promise the Iraqis that we will never reinvade.

But your problem here is that you are using a word that conjures up an image that is very different (and much more inflammatory) than what your opponents are actually advocating.

# posted by

Dilan : 8:53 PM

dilan:

What you are dancing around in this semantic drill is that fact that the Dems are calling for both retreat and defeat. A withdrawal can come after a victory or a defeat. Thus, the term "withdrawal" alone does not communicate to the listener the defeat part of the Dem plan, which is an intentional omission.

Surrender is the only word which I can come up with which relates the fact of self imposed defeat common to all the Dem plans.

You are correct that surrender is an inflammatory term. Then again, people should be inflamed by a political plan which imposes defeat on a military which the enemy could not defeat on the battlefield. If you could not tell, this former grunt is certainly fired up and I am hardly alone among the military.

# posted by

Bart DePalma : 10:08 PM

The fiasco of the Iraq war shows how easy it is under the modern Presidency to get into ill-considered wars, and how difficult it is to get out of them.

Of course, this problem is exacerbated by the lack of imagination of war supporters:

Surrender is the only word which I can come up with which relates the fact of self imposed defeat common to all the Dem plans.

People who allow themselves to be so easily manipulated so that they can only see one option, from one angle, are definitely part of the problem.

Remember, we are the government of the country, not the President, or the Congress, or the Judiciary. It is our acceptance of their roles that allows them to govern, or at least the consent of the governed used to be part of the equation, by someone who's name escapes me at the moment.

I mean, even the ancient Athenians, who had first voted to destroy and enslave a recalcitrant city in their empire, in the end voted against such action. They voted for it to show the power of the will of the people; they then voted against it to show their manganimity. How can we do any less, when the toll of dead, injured, and displaced is over 10% of the subject population?

Unless we're not a democracy, and the will of the people, and their representatives is less important than the will of one man in the pivotal seat of power. That's a different form of government that we luckily do not have to discuss in today's America.

# posted by

Fraud Guy : 10:34 AM

fraud guy:

Of course, this problem is exacerbated by the lack of imagination of war supporters:

Surrender is the only word which I can come up with which relates the fact of self imposed defeat common to all the Dem plans.

People who allow themselves to be so easily manipulated so that they can only see one option, from one angle, are definitely part of the problem...

I mean, even the ancient Athenians, who had first voted to destroy and enslave a recalcitrant city in their empire, in the end voted against such action. They voted for it to show the power of the will of the people; they then voted against it to show their manganimity. How can we do any less, when the toll of dead, injured, and displaced is over 10% of the subject population?

This is the first time I have come across the spin that politically compelled surrender of Iraq to the enemy is not really a defeat, but the Dems' magnanimous decision not to destroy the country of Iraq.

Very inventive, but there are a couple problems with this spin.

First, the anti war left and the Dems have been quite clear about their motivation for surrender - the enemy has already defeated our troops and the "war is lost." They would probably disagree with your thesis, which presumes that we can win.

Next, your thesis implies the slander that our troops killed, injured, and displaced is over 10% of "the subject population" and withdrawal of our troops would stop this decimation. The enemy has been doing the overwhelming amount of killing and injuring and all of the displacing in Iraq. Do you really think that this would stop or even decrease if we surrendered Iraq to the enemy?

# posted by

Bart DePalma : 11:55 AM

First, the anti war left and the Dems have been quite clear about their motivation for surrender - the enemy has already defeated our troops and the "war is lost." They would probably disagree with your thesis, which presumes that we can win.

First, among the motivations I have heard for leaving Iraq are:

1)There is no compelling national security interest for staying (other than securing oil fields).
2)Our troops are caught in the middle of a civil war that our presence is exacerbating.
3)The war is a waste of our tax dollars, our soldier's lives, and national prestige.
4)We are creating more recruits for terrorist groups with our continued occupation than our efforts are killing.

You hear: "surrender" and "retreat and defeat". That dog whistle must be pitched pretty high, because I have a good hearing range.

Next, your thesis implies the slander that our troops killed, injured, and displaced is over 10% of "the subject population" and withdrawal of our troops would stop this decimation. The enemy has been doing the overwhelming amount of killing and injuring and all of the displacing in Iraq. Do you really think that this would stop or even decrease if we surrendered Iraq to the enemy?

Implied slander? How slanderous!

If anything caused the death, injury, and displacement of 10% of the Iraqi population (remember, the Roman empire came up with the term decimation--what kind of people/empire would conceive and implement a word that means killing one in ten people), it was not our troops, but our invasion and failure to handle the aftermath. That was not a troop function, but a leadership function. Which ties back into this post, which is about what steps our leader can take without restraint from the rest of the government and the people. If he messes up, and fails to acknowledge his mistakes (or even realize that he's made any), then it is the troops on the ground, and the nation in general, who will pay the price.

And the enemy you mention. From what I have seen reported, the people who are killing the Iraqis are--other Iraqis. Sunni vs. Shia. Sunni vs. Sunni. Shia vs. Shia. AQI vs. the others (less than 5% by number, but seems about 90% of the focus by us). So you are basically implying that all Iraqis are our enemy.

I do not ignore the fact that when we withdraw, that there will be further deaths, of an unknown number, as the various tribes, factions, and religious groups in Iraq fight it out. You continually imply that war opponents think that everyone will shower each other with flowers when we leave. (Or when we arrive--I forget whose conceit that was.) However, by failing to attempt to create a diplomatic and political solution, not only with the Iraqis but also with the other powers in the area (Iran, Syria, Saudi Arabia, etc.), we are predictably going to make it worse when we leave. Again, a leadership function, as the troops who are dying are not going to be able to arrange regional intervention while dodging bullets, I.E.D.'s and mortar rounds.

If the President pushes us towards failure in war, there is little the rest of us can do about it. Except, of course, defunding the war, but even that didn't stop the Reagan administration, and the current crop of enablers are generously poisoning that option by claiming it is unpatriotic to stop a bad war. Which is why I brought up Athens. If the people speak, they should be listened to. And they've been speaking about ending this war for some time. But someone hasn't been listening, and he's been holding the reins of power for too long.

(BTW, please read The March of Folly by Barbara Tuchman. It's very applicable in this situation.)

# posted by

Fraud Guy : 12:39 PM

What you are dancing around in this semantic drill is that fact that the Dems are calling for both retreat and defeat. A withdrawal can come after a victory or a defeat. Thus, the term "withdrawal" alone does not communicate to the listener the defeat part of the Dem plan, which is an intentional omission.

This rests on a shakey premise. "Victory" and "defeat" are not self-evident terms here. For instance, one could say that the "victory" was removing Saddam (indeed, didn't the Bush Administration fly that banner that said "mission accomplished"?) and that Democrats are advocating withdrawal because we have already won.

Or one could say that "victory" means installing a democratic government that is stable, a friend to Israel, and a friend to the United States, and rules over a country at peace. That was clearly one of the original military objectives, but it is never going to happen. In that case, the Democrats are advocating withdrawal and defeat, while the Republicans are advocating that we stay and continue to be defeated indefinitely.

Or, perhaps "victory" means defeating all the insurgents (which include, but are surely not limited to, Al-Qaeda in Mesopotamia). If that is the definition, then its a subject of debate whether the Republicans' plans can ever get us there.

Or perhaps "victory" means partition. Or something else.

In each case, whether you want to say that the Republicans are advocating victory and the Democrats defeat depends totally on what today's definition of victory is.

(And by the way, the Bush Administration has stopped talking about victory entirely. They now say "success" instead.)

The real point, however, is that the Democrats are NOT advocating surrender. They are advocating that we withdraw from what they see as a quagmire. And in the real world, one can't draw the clear definitions of victory and defeat that you wish to.

# posted by

Dilan : 5:48 PM

Dilan said...

BD: What you are dancing around in this semantic drill is that fact that the Dems are calling for both retreat and defeat. A withdrawal can come after a victory or a defeat. Thus, the term "withdrawal" alone does not communicate to the listener the defeat part of the Dem plan, which is an intentional omission.

This rests on a shakey premise. "Victory" and "defeat" are not self-evident terms here. For instance, one could say that the "victory" was removing Saddam (indeed, didn't the Bush Administration fly that banner that said "mission accomplished"?) and that Democrats are advocating withdrawal because we have already won.

Some of the brighter folks on the left have attempted to make the argument that we have already won the war and should withdraw in victory. It is true that the military has accomplished all of the prewar goals - Saddam deposed, a friendly democratic government elected and an Iraq out of the business of making WMD and sheltering terrorists. Of course, we have fought two different wars in Iraq - the initial conventional war, which we won quickly and decisively, and the subsequent terror war, which has taken much longer and in which we only recently started to show progress. We have not yet won the second war, but we are clearly on the path to doing so if allowed by the civilian leadership.

If the Dems had taken the tack that we have already won, they may have prevailed in an argument to bring the troops home. Folks want the troops home, but not in defeat.

However, the Dem left's template is Vietnam and military defeat, Thus, they made the substantial strategic political error of becoming invested in military defeat in Iraq, the same error which made them the Mommy Party after surrendering Vietnam and condemned their Presidential candidates to a nearly constant minority status because voters do not trust them to defend the nation.

Or, perhaps "victory" means defeating all the insurgents (which include, but are surely not limited to, Al-Qaeda in Mesopotamia). If that is the definition, then its a subject of debate whether the Republicans' plans can ever get us there.

Victory in the second terror war means leaving Iraq as a viable military partner in the war against Islamic fascism. The Islamic fascist movement will not be going away for a long time. Using complete peace as the war objective is intentionally meant by the anti war left to make achieving victory impossible and thus buttress their claim that the "war is lost."

The real point, however, is that the Democrats are NOT advocating surrender. They are advocating that we withdraw from what they see as a quagmire.

Please. There are three reasons to withdraw:

1) We have won the war in Iraq and are coming home in victory. By the use of the term quagmire, you and the Dems do not think this is the case.

2) Because the enemy has militarily defeated our forces and we are compelled to withdraw to save the survivors. This is plainly not the case. The enemy has never defeated one of our units down at any level, which is extraordinary and a first time occurrence for a war of this length.

3) Because the civilian leadership if forcing a military which has never been defeated on the battlefield to retreat and surrender the battlefield. A surrender is a discretionary defeat and that is precisely what the Dems and you are arguing for.

# posted by

Bart DePalma : 8:29 PM

"Unless we're not a democracy, and the will of the people, and their representatives is less important than the will of one man in the pivotal seat of power."

The United States isn't a democracy, it's a republic. The people don't make decisions directly, we choose who will make those decisions for us. I'm not bringing this up just to be pedantic, it has a real bearing on this argument.

The President was elected, and that gives him the right to decide what actions he will take as long as he holds that office. The same goes for all the Senators and Representatives in congress. None of them have any obligation to follow "the will of the people". Indeed, if what is right and what is popular diverge, an elected official ought to do what he or she thinks is right rather than caving to public opinion.

# posted by

Blackeagle : 3:25 AM

I'm hitting two separate points here: (1) the US needs to end its status as an occupying power in Iraq ASAP; and (2) the most effective means for Congress to end the military occupation of Iraq is to initiate hearings on one or more resolutions to impeach Bush & Cheney simultaneously.

First, TO Bart & Dilan -- consider adjusting the focus of the lens for viewing Iraq: that is, start out with the legal term that defines the US status in Iraq. Under international law, the US is an "occupying power."

An occupying power does not "win" or "lose" an occupation -- it starts and occupation and later ends it. It is critical that the US end its status as an occupying power as fast as it can. To end the status as an occupying power, the US needs to withdraw a lot of troops, ASAP. This is probably the analysis that Admiral Fallon and his staff at CENTCOM are planning for and hoping to implement.

If anyone in the congressional hearings addressed the problem in this framework with Petraeus, I missed it. I hope the failure was with media coverage -- if there was not a single supporting congressional staffer who suggested this framework to her boss, that means the entire Democratic Party is hopelessly incompetent in hiring staff with relevant foreign affairs knowledge or experience.

Second, to those posting about the dilemma of the Democrats in Congress as to funding the continued military occupation of Iraq, starting hearings on Articles of Impeachment is the only way that the majority party can take the initiative away from the Numbskull-in-Chief.

The public overwhelmingly wants the troops HOME, ASAP. Two thirds of the public don't even THINK about believing anything the President or Petraeus says about Iraq any more. The punditry is full of horse manure in thinking that Bush has strong public support for continued funding of the military occupation, and Joe Biden is equally mistaken in thinking that Congress would be blamed by most of the public for “cutting off funds.”

The President is an executive, and an executive usually has to recognize many restraints imposed by limited resources. The President has already acknowledged that the surge is ending -- and it is widely known that the surge is only ending because there are not enough troops available to keep force levels in Iraq above 130,000.

Regardless of what Bush thinks, God has not decreed that Bush must be given sufficient funds to keep every available soldier in Iraq as long as the president wants to. Any private business CEO knows that if the Board refuses to raise more funds by sales or by incurring debt, the CEO has to live within the available funds. No private corporate board would put another penny into a venture that was failing as badly as the occupation of Iraq!

Almost half the public supports impeachment of Bush, and more than half supports the impeachment of Cheney -- unless those numbers have risen in the last couple of months. If measured language were used to frame Articles of Impeachment that simply stated the major wrongful acts that Bush and Cheney have already admitted publicly that they have done, by the end of the hearings, 60% of the public would support impeaching Bush and 70% would support impeaching Cheney. The same percentages would support removing each of them from office, since the lay understanding is that impeachment means removal from office.

Could these villains be removed from office by the Senate? Are there 16 votes among the Republicans? There are not now, but if my projections are on or close to the mark about public sentiment after hearings on Articles of Impeachment, there very well could be. The Republicans currently occupy 21 or 22 Senate seats that are up for election in 2008. If public sentiment broke strongly in favor of removal of Bush and Cheney from office, a lot of Republicans in contested seats would feel a great deal of pressure to replace the administration with a caretaker president.

Politically, I postulate maneuvering similar to the jockeying that occurred when Nixon was under Congressional investigation and Vice President Agnew (remember good old Spiro?) was under criminal investigation for continuing to take bribes from contractors from jobs they were doing in MD after Agnew became vice-president. If Mitch McConnell told Bush and Cheney that there was an even chance that enough Republicans would support removal to take them out of office, one of two things would probably happen. Either (1) a deal would be struck whereby Cheney would resign, Bush would appoint an acceptable Republican as replacement Veep, then Bush would resign, etc. [EXACTLY the sequence of events that occurred to remove first Agnew, then Nixon.] Or (2) Bush and Cheney would unleash such a barrage of sleaze to try to stay in office by attacking the Democrats that public opinion would break even more strongly in favor of removal; then a deal similar to (1) would be struck.

# posted by

Hardheaded Liberal : 12:08 AM