A few nights ago, my father and I got into a discussion about Iraq, Afghanistan, and America's military role therein. He is a Reagan Republican who has, I think, moved further right as he's aged (as many seem to do), while I am a pretty 'far-left' thinker.
anyway, I made the point that Congress should be using their power to bolster the mission in Afghanistan, while simultaneously drawing down in Iraq. The discussion then turned to the consitutional powers of the President and Congress, and exactly how far Congress can 'impede' on the President as Commander-in-Chief.
As can be expected, he thinks the Executive should have pretty far-reaching war powers. I, however, think true power to deploy the military is Congress'.
My email to back up this claim after the jump.
The more I thought about this last night, the more convinced I became that the ability to set the mission of the troops MUST reside with the Congress. Of course, he must be able to respond to direct and immediate threats, as well as take preventative (not pre-emptive!) measures when necessary by events, but the Constitution only allows that for 90 days. After these three months, he must make the case to Congress and receive approval.
To argue otherwise, that the President, as Commander-in-Chief has unlimited (or virtually unlimited) power to fully deploy the nation’s armed forces, including the State’s own Nat’l Guard units, in defense of any perceived threat, real or imagined, makes the office no better than that of a monarch or petty military dictator. What’s more, this particular Presidency argues that this power trumps almost any other restraint in the Constitution and that, as a wartime President, the CiC’s powers can not be checked by anything.
This was even more interesting to me when I saw this morning that Rice, on Sunday, had mentioned that, regardless of what legislation Congress passes, the President, as Commander-in-Chief (CiC), has unlimited or virtually unlimited power, and will ignore any Iraq bill that comes out from there.
John Yoo, a White House lawyer, who helped formulate and also helps defend this view of executive power has also said that: "[No] statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." To me, what this is saying is that there exists no check or balance to the president’s war-making powers. Not only that, if there can BE no constitutional limit on the president’s power to make war, what is it exactly then, that MAKES him any different from any other tyrant in human history?
If this can said to only apply to ‘terrorist threats,’ what then could be rationale for limiting those powers for a non-‘terrorist threat,’ or rather, for expanding the meaning of that phrase to include nations as well (most particularly, Iran & Syria, but also N Korea and China) OR from using such force on ‘terrorist threats’ that originate in the US. It’s even more frightening to consider that they view the President as uniquely and solely able to identify potential threats as terrorist (his "determination"), so what’s to prevent this power from being exercised on Americans at home??
Constitutionally, Congress is the first vehicle of the people, and the one with whom most authority rests and should rest. As Jefferson said, the president is the "chief Magistrate," a civil officer with the power to administer and enforce the law. While I could see the argument for a stronger executive on the DOMESTIC front (e.g., Teddy Roosevelt’s trust-busting or LBJ’s Civil Rights legislation), where it regards the military, no ONE civic officer should be able to make war indefinitely and without restraint.
In Article I, Section 2 of the Constitution, the powers of Congress are laid out, including the power
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies...; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
I purposedly quoted just these powers as they are all in the area of foreign policy and military affairs to make the point that, clearly, the founders did not envision sole power of Foreign Policy to reside in the hands of the President.
Later, in Art. II, Section 2, the President’s powers are articulated, including:
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; ... He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,"
Nowhere here does it mention a President’s powers to make war. He even needs 2/3’s consent to appoint Diplomats! [In fact, it could be argued that the president is only CiC if and when the armed forces are deployed on a mission by the Congress.]
What I am NOT saying is that we need to have 535 CiC's overseeing and planning every aspect of a military operation, but Congress (and Congress alone) are the sole determiners of exactly WHAT that operation should consist of, and, at their discretion, they can change or revoke that mission at any time.
In the more specific case of the Global War on Terror™ and the Iraq War, it is clear that the President saw the need to request authorization to use force twice, once after 9/11 to go after Al-Qaeda, and again in ’03 for Iraq. Clearly, then, this must undercut any claims of inherent power Bush wants to make about his war-making ability; if such power existed, why ask for authorization?? (Yoo said later that these authorizations "recognized" the President’s right to do this; it did not "grant" him such authority, but I think that’s a case of backpedaling.) In my opinion, even IF Congress’s act gives Bush unlimited power, the act itself is an unconstitutional movement of powers from Congress to the president, one done WITHOUT the consent of the people.
And yet, now in Iraq, Saddam Hussein has been deposed and executed, and Iraq is free of WMDs (never mind that they weren’t there to begin with). Our original mission is long since over, and the threat (real or imagined) of Iraq has been neutralized. In its absence, the mission in Iraq is purely an exercise in nation-building at this time (I won’t embarrass the president further by remembering his 2000 campaign promise to NOT use the military for nation-building). I would say at this point, then, the mission in Iraq is similar to the mission in Europe AFTER the defeat of Hitler and Germany ~ to rebuild the infrastructure and build up the democratic processes, regardless of its electoral outcome ~ an Iraqi Marshall Plan: drawdown troops from Iraq, station some of them in Afghanistan and bring the rest home; from there, devote the billions that would’ve went to supporting those troops in Iraq to direct, Iraqi-led reconstruction efforts. Freedom isn’t going to come to Iraq (and the insurgency won’t lose power) until the public at large have, at the very least, access to the most basic necessities which we are, by virtue of our invasion and occupation, responsible for.
Even more interesting, I read this article today:
"Baker, Christopher to chair war powers panel"
George W. Bush didn't care much for the work produced by the last commission James Baker chaired. He probably won't like the results from the next one any better. The University of Virginia's Miller Center of Public Affairs has just announced that Baker and former Secretary of State Warren Christopher will chair a commission to study "how the Constitution allocates the powers of beginning, conducting, and ending war."
We don't want to prejudge the commission's work, and the Miller Center's launch announcement declares that the group's efforts will be "entirely prospective in nature and not applicable to the present presidential Administration or present Congress." Still, we couldn't help noticing that the commission is well stocked with Washington worthies whose advice on Iraq the president has all but ignored so far.
There's Baker and Iraq Study Group co-chairman Lee Hamilton, from whose Iraq recommendations the White House cherry-picked a troop surge while rejecting just about everything else. There's Christopher, who warned, a year before the war began, that invading Iraq without proof of strong ties to 9/11 would "fragment the existing anti-terrorism coalition." There's Strobe Talbott, who, urging more diplomacy and greater cooperation with the U.N., has called the war in Iraq "the high-water mark of Bush unilateralism and the low-water mark of America's standing in the world's eyes." And then there's the ultimate burr in Bush's saddle: Brent Scowcroft, who warned against starting the war and has since talked openly of an administration that has lost it way in handling it.
Yes, there's some balance on the commission. Former GOP Sen. Slade Gorton is there, as is former Attorney General Ed Meese -- but even Meese has been critical, as a member of the Iraq Study Group, of the way the White House has handled Iraq. The real consolation for the president: The commission's work will be unofficial and, of course, nonbinding, and the current Congress seems increasingly incapable of rising to the challenge anyway.