There’s a certain perverse charm to President George W. Bush’s charge that Democrats are “more interested fighting political battles in Washington than providing our troops what they need.” In the same vein, Secretary of State Condoleezza Rice said that “the president is going to, as commander in chief, need to do what the country needs done.” These sentiments reflect utter shamelessness and amazing chutzpah.
This is, after all, the president who took the nation into an unnecessary war. This is the administration that manipulated intelligence regarding WMDs, deceived the American people about the relationship of Iraq to the war on terrorism, and demagogued anyone who questioned the imminence of an Iraq-created Armageddon.
These are the supposed “adults” – a toxic mix of ivory tower neoconservatives and perennial Republican apparatchiks – who failed to foresee the likelihood of guerrilla conflict, provide enough troops for the occupation, and equip personnel with sufficient body armor and armored vehicles. This is the president and assorted factotums who regularly proclaimed that all was well even as Iraq slid into chaos and crisis.
This is the president who refused to acknowledge ugly reality as every promise and prediction about Iraq proved false. This is the president who refused to hold anyone accountable for the manifold mistakes in Iraq until after Republicans lost the mid-term election.
Finally, this is the administration that failed to adjust policy, and even then chose a modest escalation, until virtually everyone outside of the administration insisted that U.S. strategy was bankrupt. Through it all President Bush insisted that he was standing by the troops – who were being wounded, maimed, and killed as a result of his foolish policies and inept actions.
Now he is threatening to veto funding for combat personnel in the name of supporting the troops.
Yet the administration and its GOP allies are tarring Democrats for allegedly consorting with America’s enemies. Said Vice President Richard Cheney, the Democratic effort to reign in the administration would “revalidate the strategy that Osama bin Laden has been following from day one.”
House Minority Leader John Boehner similarly argued that the “Democrats are almost unanimous in their desire to abandon Iraq to al-Qaeda.” A group of conservative lawyers flamed: “It is not unconstitutional for Congress to send other signals that strengthen the resolve of our nation’s enemies, including that it wants to undercut the president’s prosecution of the war and that it may even cut off funding in the future. But it is hard to imagine what good could come from sending such a signal.”
The Iraq war was a terrible mistake and should be ended as soon as possible. The Bush escalation might bring some temporary peace to Baghdad’s streets, but it won’t result in permanent peace in the region, let alone a liberal, pro-American democracy in Iraq. America is leaving; the only question is when? Iraq already is in a cauldron of sectarian violence; the only question is how bad?
No matter how effective the military’s tactics, the Bush administration cannot sustain a policy which fantasizes that Shi’ite politicians will stop acting like Shi’ite politicians. The administration cannot sustain a policy which promotes an Iraqi government allied with the greatest alleged regional threat for America, Iran. The administration cannot sustain a policy that attempts to develop a regional Sunni bloc to contain Shi’ite Iran while aiding the Shi’ite Iraqi government as it attempts to crush Iraq’s Sunni minority. Better to get out now than to make American troops suffer through the inevitable crash of these contradictory policies.
But President Bush, buoyed by the praise of his neoconservative Greek Chorus, remains trapped in a fantasy world of unlimited American power transforming the world in Washington’s image. Since global realities have no apparent impact on the president’s beliefs, one could imagine him 10, 20, and 30 years from now counseling continued patience in Iraq, since victory is just around the corner – at the light we can all see at the end of the tunnel.
Thus, more American and coalition personnel, and Iraqis, military and civilian alike, will die unless Congress acts. That will require political courage, a commodity usually in short supply on Capitol Hill. But that’s why we elect people to Congress. As Sen. Chuck Hagel (R-Neb.) pointed out with characteristic directness, “We tried a monarchy once. It’s not suited to America.”
In opposing congressional efforts to end the war, the administration and its supporters argue that the president is essentially a king. Thus, Congress has no right to do anything other than vote the funds that he requests. In this view, the executive makes the decisions and the legislature is window dressing, a convenient democratic gloss for executive decisions. Contrary to what Americans are commonly taught, their ancestors fought a revolution to enshrine executive power.
This is utter nonsense, of course.
The war powers are complex, a mix of concurrent authority that invites political struggle to sort out the boundary between executive and legislative action. Former Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) correctly observed that the president “is not the sole decider. The decider is a shared and joint responsibility.” There has been a recent presidential power surge, but because of congressional lassitude, not constitutional design.
The president has one clear, explicit grant of military authority: he is commander-in-chief (of the military, not the nation, it should be noted). Congress makes military policy: it provides for the common defense, raises the army, sets rules for war, approves treaties, and declares war.
In this system, the legislative power is supreme. The president’s authority is effectively contingent on congressional action: without a military – whether ground, naval or air units – being commander-in-chief is an empty position. Without a standing army of significant size, being commander-in-chief offers little power. Prior to 1946, when the U.S. first maintained a wartime military in peacetime, no president could initiate full-scale war without simultaneous legislative action to create a larger, better-trained, and more fully-equipped military.
Second, being commander-in-chief doesn’t mean much if Congress has not authorized use of the military in a war. True, this point is controverted: conservatives who otherwise prattle on about “original intent” contend that the president possesses imperial power, the authority to attack any nation any where at any time for any reason, without legislative constraint.
This is a modern invention. Although early Americans differed on the strength of the nation state that they desired to create, few supported the sort of kingly prerogatives that the colonists sharply attacked during the Revolution.
The Articles of Confederation separated decisions about the commander-in-chief from decisions about going to war. The debate over the war powers clause at the Constitutional Convention was short, but attendees explicitly advocated placing limits on executive authority. James Madison referred to the “fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature.”
This was necessary, argued Virginia’s George Mason, for the purpose of “clogging rather than facilitating war.” Even James Wilson, who supported a strong president, noted that the war powers provision would “not hurry us into war” since “It will not be in the power of a single man, or a single body of men, to involve us in such distress.”
Conservative advocates of expansive executive war powers are effectively pushing for the much-derided “living Constitution.” In this view, the legislature’s authority now merely consists of taking official note of the fact that the president has initiated a conflict. But if this is what the Founders intended, they wouldn’t likely have bothered with the provision, probably would not have wasted time debating it, and certainly wouldn’t have suggested that the clause would limit war-making. The delegates clearly sought to use the requirement of legislative assent to leash the dogs of war.
The Framers did change “make” to “declare,” but only to allow the president to respond to a sudden attack. Advocates of investing the president with kingly powers also point to the many small-scale military actions initiated by presidents over the years. Yet there is a material difference between undertaking minor acts of war, usually in exigent circumstances, and initiating a state of war. For instance, President Woodrow unilaterially ordered the Army to chase bandit Pancho Villa in Mexico; he took no military action against Germany until he had procured a declaration of war. The Founders knew that presidents would be tempted to initiate war unnecessarily, which is why they lodged this decision with Congress.
What, then, of the present “surge,” or escalation?
In a duly authorized war, like Iraq, the president, as commander-in-chief, has full tactical and operational authority. If he believes more troops are necessary to fight the war in Iraq, he has the authority to deploy them. But can Congress stop him? Michael Mellow of Vermont Law School argues: “Anyone who tells you that they are certain that they understand what the law is in this area is pulling your leg.”
Ironically, Democrats risk a constitutional fight because they refuse to confront the president directly over continuing the war. Since Congress can say no to any military funding, it can bar use of money to fight a particular war. Since Congress sets overall troops levels, it can limit the number of personnel employed in any theater of operations.
Even here, some Bush supporters disagree. David Rivkin and Lee Casey, two conservative lawyers who believe the executive is the federal government, write: “There is a good question whether Congress, constitutionally, can forbid the president – even using its spending power – from engaging the declared and active enemies of the United States wherever he can find them,” by which they apparently include Sunni guerrillas opposed to Iraq’s Shi’ite-dominated government. John Yoo, a former Bush Justice Department official, similarly contends that Congress cannot “place any limits on the president’s determination as to any … terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. Those decisions, under our Constitution, are for the president alone to make.”
These are truly extraordinary arguments. By this reasoning the president isn’t bound to accept a smaller military than he desires to combat such enemies as he perceives in the manner that he prefers. The president is entitled to invade any (and every) country on earth – India, say, if the president perceives a link between Sikh extremists and al-Qaeda. Congress is duty-bound to salute the president: Any failure to provide the administration with whatever it demands would violate the president’s war power.
But Congress is not a constitutional nullity. Rivkin contends that “If Congress can do this to [place restrictions on] the president, the president, instead of being head of a co-equal branch, is a ward of Congress, a flunky.” But in a sense the president is a congressional flunky by constitutional design. Congress, not the president, approves laws and appropriates funds. The president is the executive officer tasked with enforcing the law as propounded by Congress, in a manner propounded by Congress. Even when it comes to war, since the legislature has ample powers of its own. Thus, the president is bound by valid legal restrictions on combat in Iraq. The question is, what restrictions are constitutionally valid?
The extent of the president’s authority as commander-in-chief has been rarely tested because Congress usually does not challenge the president. Legislators never have attempted to direct military operations – ordering the president to take a particular hill or withdraw a particular unit, for instance. Congressional Republicans held hearings during the Civil War to pressure the Lincoln administration at which they questioned generals about battlefield mistakes; nevertheless, they avoided directly interfering in ongoing combat.
Can legislators tell the president not to deploy particular units based on their training levels? Can Congress order a withdrawal based on unenforceable criteria assessing the state of democracy in Iraq? The answers aren’t certain, since the president can in effect argue: if you decide to authorize me to fight a war, you have to let me fight it. (The administration’s abundant ineptitude and deceitfulness do not affect the constitutional issue of relative war-making authority.) Moreover, the courts almost certainly would avoid ruling in such a dispute, leaving it to the political branches to resolve.
Thus, legislators should attack the war directly. Only firm congressional action will constrain this president.
First, legislators should vote to de-authorize the war. Backing the administration in 2002 obviously was a hideous mistake. Moreover, the current conflict has little to do with the original mission: Congress did not vote for a lengthy campaign to suppress sectarian brutality when it backed President Bush’s promise to disarm Saddam Hussein in the name of forcing his compliance with United Nations resolutions. The president undoubtedly would veto such a measure, but legislators should challenge the legal basis of the war.
Second, Congress should cut off future funds. Unfortunately, legislators already have approved the 2007 Pentagon budget. But they should vote no money for combat operations in Iraq next year. The administration could then develop a phased withdrawal program in consultation with the Iraqi government. Should the president believe he needs more time, he could work with legislators to develop a disengagement strategy with bipartisan support.
Third, Capitol Hill should continue its current effort to limit the use of any supplemental funds approved this year. The administration has attempted to hide the war’s cost by excluding Iraq from the budget, instead winning necessary money through multiple “emergency” supplementals. As a result, the president is vulnerable to congressional pressure. Without new money, he can maintain current combat operations only for two or three more months by slashing training, maintenance, and other discretionary military activities. Without the latest proposed financial infusion, the war likely would end by summer.
Thus, Congress should indicate that it is prepared to vote some additional money for this year – in a clean bill, not larded up with domestic pork – if the administration adjusts its policy and develops an exit strategy. Congress should place responsibility squarely upon the president: he can cooperate with Congress to win additional funds or he can leave U.S. service personnel high and dry. It will be his choice. If Bush’s characteristic stubbornness wins out, the administration will be putting the troops and the nation at risk by continuing a counterproductive conflict that has lost public support.
Congress should cap total force levels in Iraq. Legislators should bar use of any funds for new (and permanent) base construction. Members should insist that the administration develop general withdrawal plans which, while flexible enough to deal with unexpected circumstances, nevertheless will end America’s participation in Iraq’s civil war around the end of this year, not 2008, as the Democrats propose. In contrast, narrower conditions, such as restricting troop deployment based on congressionally-mandated readiness standards, risk charges of congressional micro-management and would be constitutionally suspect.
A large majority of Americans believe that the war was a mistake and want the U.S. out. That hasn’t stopped Republicans from demagoguing the issue, however, charging the Democrats with cutting and running and aiding the terrorists.
Democrats (and antiwar Republicans) should respond in kind, asking why the president and his GOP disciples want U.S. forces to stay and die in a foreign civil war. War critics should ask why American troops should be fighting and dying in a nation where a large majority of the people we are supposedly defending support attacks on U.S. personnel. Further, legislators should point out that the Iraq conflict has spurred terrorist recruitment and turned most of that nation into a terrorist training ground. And that the war has weakened the American military and isolated the American nation.
Republicans also have been emphasizing the mess that would undoubtedly remain after a U.S. withdrawal. Indeed, they have been comparing current legislative efforts to Congress’ decision three decades ago to cut off military aid to Cambodia and defund military operations in Vietnam.
But those U.S.-supported regimes collapsed because of internal failure, not the absence of American support. Moreover, Democrats should ask Republican war enthusiasts if they believe that American soldiers and Marines should have remained fighting in the jungles of Southeast Asia for years, decades, or more – as long as it would take for “victory.” Anyway, Iraq is a disaster right now. A U.S. withdrawal would merely get America out of the existing cauldron of sectarian strife.
Obviously, legislators fear the political repercussions of playing a political game of chicken with the White House. But Congress should use the battle to build popular support. War enthusiasts fear a serious debate. For instance, the Wall Street Journal earlier denounced congressional criticism of the war because “At home, it further undermines public support for the Iraq effort.”
Through a series of votes Congress can demonstrate that the president is isolated, without public or legislative support for continuing the war. Moreover, continuing investigations and hearings will expose further incompetence and corruption, defusing complaints of congressional micro-management. Legislators have no choice but to act, because the administration persists in a course that most Americans recognize to be disastrous.
Admittedly, Congress is a weak reed upon which to lean. When asked about the president’s escalation, Sen. Foreign Relations Committee Chairman Joseph Biden (D-Del.) responded: “There’s not much I can do about it.” That’s nonsense. The Constitution grants Congress the authority to end the Iraq war.
The Founders expected chief executives to abuse their powers. In return, legislators were expected to constrain presidential abuses. For this reason, the constitutional design disperses war powers and allows Congress to check the president. Notes Supreme Court Justice Antonin Scalia, the Constitution was “designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.”
Battling the president might not be easy. Doing so might be politically risky. But why did Democrats run for Congress if not to make a difference? And where is it more important to make a difference than in cleaning up the bloody international mess created the Bush administration?
Support the troops. Bring them home. Starting now.
