Maybe There's Something To This al Qaeda Thing After All

This past week, with relatively little fanfare or notice, President Obama made what should have been a startling revelation. In stark opposition to his campaign promises and actions in the early days of his presidency, officials in the Obama administration announced that the president is likely to revive the use of military tribunals to prosecute suspected members of al Qaeda and other Guantanamo detainees. According to the New York Times:

Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.

...

It is not clear how many of the remaining 241 detainees are likely to be prosecuted. The four-month suspension of military commission proceedings Mr. Obama ordered is to end May 20. As a result, administration officials are considering whether to ask military judges at Guantánamo for an additional delay. In making such a request, administration lawyers might outline their proposed changes.

In recent days, senior administration officials have hinted publicly that commissions were far from dead, yet offered no specifics and their comments drew little attention. In Congressional testimony on Thursday, Defense Secretary Robert M. Gates said, “The commissions are still very much on the table.”

In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”

As I see it, there are three possible explanations for this. First, that Obama is the same kind of rights-trashing, law-disrespecting monster that Bush was. Second, that Obama is simply hoarding presidential power now that he is president and is reluctant to give up any power that he has a right to exercise. Third, that al Qaeda represents a real threat to the United States, which Obama, now that he has unfettered access to US intelligence agencies, has come to realize and that giving civilian legal protections to the most dangerous detainees does, in fact (as Bush claimed it did) threaten the national security of the country.

I think we can discard the first possibility without much discussion. The second probably plays some part in this, but any decision to revive military tribunals is most likely a result of the third. Al Qaeda is a serious threat to this country. How much of a threat is certainly up for debate, but when we debate the question we must realize the limits to our knowledge. We do not know how many plots have been foiled, how many al Qaeda cells have been infiltrated, how much the government knows, and how dangerous al Qaeda still is. We can speculate and debate these questions, but we simply cannot know the answers in the same way that our governing officials can.

Since coming to office, Obama has maintained the policy of extraordinary rendition and is now considering the military tribunals which he once voted against as a senator. Perhaps this tells us he's simply a power-coveting politican; but it also might tell us that the threat to our country is a serious one that requires extraordinary measures to combat.

Should Congress Declare War on al Qaeda?

Testifying before Congress today, Attorney General Michael Mukasey urged Congress to formally declare war on al Qaeda. Appearing to provide testimony about pending legislation concerning the decision in the Boumediene case that detainees in Guantanamo Bay do have habeas rights, Mukasey argued that the legislation should:

prohibit courts from ordering a detainee to be released within the United States, protect secrets in court hearings, ensure that soldiers are not taken from the battlefield to testify and prevent challenges from delaying detainee trials,

In addition, he said, "Any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban and associated organizations, who have already proclaimed themselves at war with us."

"Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda," and related groups, he said.

As readers of this blog, I have long argued that the congressional power to declare war is about the legal status of individuals under the jurisdiction of US law, rather than the power to deploy troops and initial hostilities, and Mukasey's request fits along that opinion.

However, it would be disastrous if Congress declared war. Fortunately, it's hard to imagine Congress doing so, especially as the Bush presidency comes to an end. But, if Congress agrees with Mukasey and does declare war, Bush would be placed at the absolute zenith of presidential power. Declarations of war are tools by which Congress recognizes the grave danger faced by the nation and expands presidential power to meet that threat. The expanded power enjoyed by the president under a formal declaration of war is, in essence, the power to legislate normally possessed by Congress. Thus, under a declaration of war, presidents are able to intern US citizens, seize domestic industry, censor the press, and take similar actions of a legislative nature. Clearly, these are the kinds of powers Mukasey has in mind, as he seeks stronger powers to detain, investigate, and try those suspected of involvement in international terrorism.

And that is why Congress should not declare war. Reasonable people can and do debate over the nature of the threat posed to the US by al Qaeda. But al Qaeda does not threaten to destroy the United States, and has not even be able to mount a successful attack against the US since 2001. While the threat may very well be serious, and may even be the most serious threat faced by the US today, it does not justify giving such broad powers to the president. True, the administration has faced several setbacks in its efforts to combat al Qaeda at the hands of the Supreme Court, which very well may hurt those efforts. But cutting the Court out of the process by getting a declaration of war is not the answer. Rather, the Bush Administration should consult more with Congress to get legislative backing for its policies.

Fixing the War Powers Resolution

As readers of Security Dilemmas may know, I am currently working on questions of presidential-congressional war powers, and have a contract with Praeger Press for my book Restoring the Balance: War Powers in an Age of Terror. So, it is of course of interest to me that the National War Powers Commission has published its report (the pdf file of the final report is here) on how to fix war powers. The Commission also published an op-ed in today's New York Times summarizing their findings.

The Commission notes that the War Powers Resolution of 1973 has been monumentally ineffective at resolving fundamental questions -- both constitutional and political -- of war powers. The WPR is also, most likely, unconstitutional, as the stipulation that Congress need only pass a concurrent resolution to force the president to withdraw deployed troops seems to violate the prohibition on legislative vetoes established in INS v. Chadha. But, more importantly, the WPR wasn't really in tune with political reality:

it too narrowly defines the president’s war powers to exclude the power to respond to sudden attacks on Americans abroad; it empowers Congress to terminate an armed conflict by simply doing nothing; and it fails to identify which of the 535 members of Congress the president should consult before going to war.

Their recommendations:

Our proposed statute would provide that the president must consult with Congress before ordering a “significant armed conflict” — defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts — for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation — not just notification — would need to be undertaken within three days.

To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.

Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president’s veto were overridden. If the resolution of disapproval did not survive the president’s veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.

This is an admirable effort, and is infinitely better than the War Powers Resolution (not to mention that it solves the legislative veto problem). However, it is not likely to satisfactorily resolve the concerns over war powers.

On one hand, the proposed statute gives broad powers to the president, but still couches the commander-in-chief power under the domain of the legislative branch. As I have argued multiple times on this site, as well as in two law review articles and my forthcoming book, it is not at all clear that the Constitution intends Congress to have any say whatsoever over the deployment of the armed forces of the United States. If, as I argue, the "declare war" clause is about the power to transform the legal status of the political arenas rather than the power to deploy troops or initiate hostilities, then giving Congress any power to force the president to bring deployed troops home is a violation of the separation of powers mandated by the Constitution.

On the other hand, the method by which the proposed statute functions is unlikely to satisfy proponents of a more robust role for Congress on the issue of war powers. Forcing the president to bring the troops home would require: 1) A vote to authorize the deployment to fail; 2) Both Houses to pass a "resolution of disapproval," and; 3) Both Houses to override the inevitable presidential veto by a 2/3 vote. It is all but inconceivable that this would happen. Even in a fantastically unpopular war, like the current one in Iraq was during its darkest days, it is unlikely that enough of the president's fellow party members would defect. Furthermore, as Iraq has clearly demonstrated, even those congressmen vehemently opposed to the war are loath to go on record opposing the president, and even more hesitant to take actions to end the war when such actions would place blame and responsibility on their heads, rather than on the president's.

The report is a welcome improvement on the War Powers Resolution. But I do not expect that it will have any meaningful impact on the balance of war powers between the president and Congress. It does mandate regular reporting on active troop deployments, and creates a clear mechanism for doing so, and that is a good thing. But, even while rejecting the War Powers Resolution, presidents have tended to regularly report to Congress, so not much will change there either. Still, the War Powers Resolution is a terrible piece of legislation, and deserves to be put to rest. Whether this proposed legislation can and will pass is a question to which I do not know the answer. It definitely seems to reduce the power of Congress (although only hypothetically, as Congress has never even really tried to enforce the WPR), so it should be an interesting debate.

UPDATE: I'm currently teaching US Foreign Policy in summer school, and as we talked about war powers yesterday, we considered the Commission's report today. It occurred to me that there's another reason this proposal might be not-so-good from the perspective of desiring a strong congressional role. Forcing a vote on approving the deployment of force at the 30 day mark may make it more likely that Congress will fail to stand up to the president. It's exceedingly hard for Congress to go on record as opposing the use of force by the president. After all, no one wants to be seen as soft on ____ (Insert communism, terrorism, or whatever bogeyman is popular); furthermore, congressmen don't want to be blamed for whatever happens, especially if they force the troops to come home. So, at the 30 day mark, when the conflict is still relatively fresh, there may be bureaucratic inertia that favors the president and renders any dissent impotent.

Mario Cuomo's Straw Man

On Monday, Mario Cuomo, the former governor of New York from 1983 to 1995, had an op-ed entitled "What the Constitution Says About Iraq" in the Los Angeles Times that, to put it bluntly, was an embarrassment. If one didn't know better, reading his opinions on congressional-executive war powers would lead one to believe that Cuomo knows nothing about constitutional law or national security law. Since I'm willing to give Cuomo the benefit of the doubt, we can only assume that he's creating straw man arguments purposively to score cheap political points.

Cuomo's argument is that:

the [Iraq] war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress -- not the president -- shall have "the power to declare war."

To Cuomo, this was a disastrous decision by Congress, and in the future:

We must do everything we can to end the war in Iraq and avoid a new tragedy abroad [in Iran] by recommitting to strict adherence to the rule of law and to the Constitution by the president, Congress and the courts -- especially with respect to war powers.

While it's true that the Constitution gives Congress the power to declare war, Congress has only done so five times in history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. And yet the US has used force well over 200 times without a formal declaration of war.

For Cuomo, this precedent has no relevance:

Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a "declaration" by Congress.

This is the first of Cuomo's pathetic straw man arguments. It is of course true that the Constitution cannot be amended by patterns of behavior. But it is equally obvious that Constitutional interpretation does change according to the behavior of government. This is made evident in the famous "Steel Seizure" case (Youngstown Sheet & Tube Co. v. Sawyer), in which Justice Jackson and Justice Frankfurter argued that the interaction between the president and Congress can and should be used to interpret the Constitution. For Frankfurter:

a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by Section 1 of Art. II.

Given that force has been used hundreds of times without Congressional approval or protest but with Congressional knowledge, such a gloss is quite clear. Furthermore, Jackson, in setting out his famous three categories for understanding the scope of presidential power, argued that:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, on in which its distribution is uncertain. Therefore, congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

Congress has not spoken (note, congressmen speaking do not equal Congress speaking. More on this below) against the war in Iraq, nor has Congress ever tried to restrain a presidential deployment of US troops. Such silence can only be read as creating a gloss or as Congress allowing the president to rely on his own independent powers.

But Cuomo is ready with another straw man argument to challenge this claim. It wouldn't matter, he says, if Congress did try to restrain the president:

Even if Congress were able to pass a veto-proof bill with respect to withdrawal, the president would resist enforcement of the bill, insisting that as commander in chief, he is immune from Congress' decision. That would raise a constitutional issue for the courts.

But judging by the courts' history concerning constitutional war powers, including decisions involving the Iraq war in the U.S. 1st Circuit Court of Appeals in Massachusetts, the judiciary would, in all probability, choose not to intervene, claiming that the disagreement between the president and Congress is a political question.

This is an absurd misrepresentation of the concept of a political question. A political question, in which the Supreme Court typically refuses to involve itself in a dispute between the legislative and executive branch, most often arises when Congress fails to speak with one voice to assert its Constitutional power. For example, in Goldwater v. Carter, Senator Barry Goldwater and several other members of Congress challenged the right of President Carter to nullify a treaty with Taiwan in order to establish relations with China, claiming that Senate's constitutional power of advice and consent meant that the Senate needed to vote on the nullification. The Court refused to hear the case, determining that it involved a political question. But what made the question political was not the challenge, but rather the fact that it was not the Senate as a body that was challenging the president, but rather a group of individual senators. Thus, the question of whether the president had the power to act unilaterally was not really being raised, as Congress was not asserting a different interpretation of the Constitution. Justice Powell's concurrence made it clear that if the Senate had, in fact, passed a resolution formally opposing the action by Carter, the Supreme Court very well might have heard the case, settling the question.

If Congress had ever tried to stop a presidential deployment of force by, for example, passing a joint resolution claiming its power to declare war governs all deployments of force (as Cuomo argues it does) or by cutting off funding for the troops, and if the president refused to obey such an action, the Supreme Court would almost certainly have to resolve the issue (although it's possible that the Court would try to defer action while the troops were in the field). Such an dispute would be a constitutional question of the highest order, and if there was a formal clash between the president and Congress, the question would have to be settled.

Cuomo goes on to say that "the sad truth is that the current conservative-dominated Supreme Court would probably support our current conservative president. As a practical matter, that means only the president can end this war or change our strategy in Iraq."

Another ridiculous claim, unless by "as a practical matter" Cuomo means without making the Democratically-controlled Congress take responsibility for ending the war. It is a clear, unambiguous, and well-established fact that Congress could cut off the funding for the troops if it truly wanted to end the war. No one, not even President Bush, disputes this. However, as was made clear during the last round of appropriations hearings, Congress refuses to do this. Of course it would be politically dangerous...but if the congressmen so fear being punished by their constituents, doesn't that give the lie to their claims in the first place?

It is ridiculous and absurd for Cuomo to try to blame the Court for this situation, when the fault truly lies with a Congress that refuses to act according to the principles it so vocally expresses. Cuomo's op-ed is little more than a political screed that ignores fact and constitutional law. It is an embarrassment, as is he.

Shame on the Senate

Last night, the US Senate held an all-night debate on a proposal to force a withdrawal of American troops from Iraq in 120 days. The fact that a bunch of middle-aged (and older) millionaires would be staying up all night was irresistible to the New York Times, which ran a front-page picture of the cots that the tired legislators would be using (doesn't that defeat the purpose of an all-night debate? Just shows just how useless big government is...it can't even get an all-nighter right). The Times thought the even so important to run a page 7 article that described the idiotic theater that went on: Pizza boxes (one would hope that the Senate has good enough taste to order from Pizzeria Paradiso, but I doubt it), the photo shoots of the cots (in which the Times obviously participated) and the gift bags sent to the Republicans by the majority leader Harry Reid which were tied with yellow ribbons and bore a note reading “A few supplies for your sleepless night — help us bring an end to this war.” (And Reid insists this all-night debate wasn't about political theater.)

I don't quite understand the oohing and aahing about the Senate doing what many of my students do on a routine basis. So a bunch of rich people who only work half the year (true, I only work half the year, but I don't make $165,000 a year) stayed up all night once? So what? Are we supposed to be awed by how seriously the Senate is taking the question of withdrawing troops? Only a group as self-congratulatory and narcissistic as the Senate could believe that such a transparent and empty gesture as an all-nighter could substitute for intelligent and informed discourse.

But the shame of the Senate goes even farther. What was the point of the debate? To pass a law requiring the withdrawal of troops from Iraq in 120 days; a law which would undoubtedly be vetoed or simply ignored as unconstitutional (as I have argued several time, unless the power of the purse is used, Congress may not tell the president how to use the armed forces). The time to oppose the surge, or even the entire mission, is not now; it was months ago when Congress voted on the appropriations bill to fund the war in Iraq. The Senate didn't have the guts then to do what it would take to end the war, so the surge went forward and the war continued. It's now only a few months into the surge, so why give up now? Not that the Republicans are any better. Several prominent GOP Senators, like Richard Lugar (R-IN) or Pete Domenici (R-NM) have backed away from the Iraq mission publicly but failed to back the Democrat's bill. So why have they distanced themselves from the larger mission?

For the Senate to behave this way is shameful. Iraq demands and deserves serious political discussion. It demands politicians who have the spine to do what they believe is right, even if it may be politically damaging to them. But to put on political theater to convince us that they're serious is utterly disgraceful.

Tragic Isn't Illegal

This past Sunday, the Tacoma News Tribune published my op-ed piece on the legality of the Iraq War. The argument is nothing I haven't already said here, but if you want to read the whole piece, it can be found here.

De-Authorizing the Iraq War

In the aftermath of President Bush's veto of the Iraq appropriations bill, Senators Hillary Clinton and Robert Byrd have called for legislation revoking the congressional authorization under which the Iraq war is being fought. The Authorization for the Use of Military Force was passed by the House on October 10, 2002 by a 296-133 vote, and by the Senate on October 11 by 77-23 and provide Congress' explicit legal permission for the prosecution of hostilities in Iraq.

The call for de-authorization has some support from, for example, Senator Barack Obama and Governor Bill Richardson (NM). However, it also has run in to opposition from other high-profile war opponents, such as ex-Senator and presidential candidate John Edwards.

Senator Clinton hopes that de-authorization would remove the legal authority of the president to continue the war and force Bush to ask Congress for new authorization. But, would a Act of Congress rescinding the AUMF have that effect? As the New York Times puts it:

Even if Mrs. Clinton and Mr. Byrd succeed in their effort, it is not clear whether President Bush would have to withdraw troops, or if he could resist by claiming that Congress cannot withdraw its earlier authorization but instead has to deny money for the war to achieve that result.

The question could prompt a constitutional debate over war powers that only the federal courts could resolve.

The Times is right that passage of a de-authorization bill (although it would certainly be vetoed, just as the appropriations bill was) might very well provoke a critical constitutional debate over the nature of war powers, but I think they've got the grounds of that debate wrong. The president would most likely claim that he does not in fact require congressional authorization to conduct military operations, and that requesting such authorization is not a legal necessity but rather a political nicety.

One argument that I have made several times is that the continued funding of a standing army, in light of congressional awareness of how that military has been used in the past, constitutes a de facto congressional authorization of military operations. Thus, just as every president since Nixon has rejected the War Powers Resolution, in this view, Congress does not have the power to oversee and control (short of cutting off funding for the troops) each and every use of military force. The congressional power to declare war is, according to this argument, more about the president's ability to take legislative action pursuant to the conduct of the war than it is about giving Congress authority over the deployment of force.

As I have noted before, no one really knows how the judiciary would decide. Which is why a Supreme Court hearing on this would be welcomed. However, it's not likely to happen. Congress is unlikely to muster the political will to pass de-authorization legislation (in my last post on these issues, I noted that the puzzling language in the appropriations bill suggested a need to soften the language of the bill to attract enough support for passage). And even if Congress manages to pass such a bill, if it couldn't override the veto of the appropriations bill it doesn't seem likely to override a veto of what is sure to be an even more controversial bill. So while we might like to see a showdown over this, I wouldn't keep your fingers crossed.

Congress Speaks Up...But What Did It Say?

Yesterday, the Senate joined the House in passing an appropriations bill containing language requiring the president to begin withdrawing troops from Iraq by March 1, 2008, or even sooner if the Iraqi government does not meet certain benchmarks. The bill is certainly destined for a presidential veto...so what now?

I'm not completely convinced that the way in which Congress is trying to impose these deadlines on the deployment of US troops in Iraq is completely legal and constitutional. With this bill, Congress is trying to use the power of the purse to restrict US military activities in Iraq. But, looking at the language of the bill, it's not clear that's what Congress actually did. The parts containing the deadline for troop withdrawal (Section 1904) read as follows:

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;

(3) whether the Government of Iraq and United States Armed Forces are making substantial progress in reducing the level of sectarian violence in Iraq; and

(4) whether the Government of Iraq is ensuring the rights of minority political parties in the Iraqi Parliament are protected.

(b) If the President fails to make any of the determinations specified in subsection (a), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq no later than July 1, 2007, with a goal of completing such redeployment within 180 days.

(c) If the President makes the determinations specified in subsection (a), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq not later than October 1, 2007, with a goal of completing such redeployment within 180 days.

Note that the withdrawal demands make no mention of prohibiting funds being used for the troops. In other parts of the bill, for example Sections 1311 or 1312, Congress places explicit restrictions on the way in which monies can be spent. Section 1311 states that:

None of the funds appropriated or otherwise made available by this or any other Act shall be obligated or expended by the United States Government for a purpose as follows:

(1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.

(2) To exercise United States control over any oil resource of Iraq.

while Section 1312 states that:

None of the funds made available in this Act may be used in contravention of the following laws enacted or regulations promulgated to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

These are clear, unambiguous, and perfect examples of Congress using the power of the purse correctly. Congress is free to place restrictions such as these on monies appropriated to the president, and has, in the past, used such restrictions to bring to an end, or prohibit, presidential foreign policies with which Congress has disagreed, such as the possible expansion of the Vietnam War into Cambodia, the Vietnam War itself, and support for the contra rebels in Nicaragua.

But this is not what Congress has done with the troop deadlines. Section 1904 simply demands that the troops be withdrawn according to the timetable outlined by Congress; there is no language prohibiting funds to be used to maintain troops in the field. I'm no expert on Congress or the specific nature of legislative language, but it seems to me that the president could choose to claim that this attempt by Congress to force a withdrawal is an unconstitutional encroachment of Congress on to the commander-in-chief power of the president. Congress may not tell the president when and where troops may operate, especially not once those troops have been authorized by Congress (as they have with the AUMF) and funded (as they would be with this bill).

What would be ideal, from my academic perspective, is for Bush to sign the bill and then refuse to comply with the deadline, which would put to the constitutional test some serious issues of war powers: Can Congress control the deployment of troops? Does the AUMF equal a declaration of war, as the administration often claims? It's not entirely clear that the president would win in the Supreme Court, but given my reading of case precedent and the make-up of the current Court, it does seem likely.

But the larger question is: Why does Section 1904 lack the language of explicitly prohibiting funds for maintaining US troops in Iraq?

There are several possibilities that come to mind. First is that Congress is trying to use its interpretation of the "declare war" clause, a la the War Powers Resolution, to end the war. In this scenario, Congress believes that the president needs explicit congressional approval to prosecute military operations and that by passing this bill that approval no longer exists. The problem here is twofold: First, it's not clear that this language would serve to undo the AUMF, and that without expressly revoking the authorization granted in the AUMF, any effort to order troops here or there looks like tactical moves that violate the CINC power of the president. Second, as I have argued in many places recently, it's not clear that the War Powers Resolution with its interpretation of congressional war powers is in fact constitutional.

The second explanation for the absence of the prohibiting language is that Congress had to back away from the stronger language in order to assure passage of the bill. The votes in both houses was very close -- 51-46 in the Senate and 217-208 in the House -- and required both moderate Democrats and a few Republicans to vote yes. Those more centrist politicians may not have been willing to vote for a bill that, even if vetoed, would have put them on the record as having voted to de-fund the war. The legislation as passed, however, doesn't de-fund the war.

Despite the publicity surrounding this bill, it seems as if it was never really intended to force the president to bring the troops home. This should not be surprising. Much of politics is about wheeling and dealing and back-room wrangling. Congress tries as much as possible, especially when foreign policy is involved, to voice its opinion without actually taking action. And this bill does exactly that.

Congress Backs Down

Congressional Quarterly Today reports that the Democratic leadership in the House of Representatives is "preparing their rank and file for the likelihood that a final supplemental spending measure will contain the nonbinding Iraq withdrawal language favored by the Senate." While the House's appropriations bill contained language that attempted to force a complete withdrawal of US troops from Iraq by September 2008, the Senate's version of the bill only contained a non-binding target for withdrawal by March 2008. The bill would certainly have been vetoed by President Bush if it contained the binding deadline, but the House leadership appears to be unwilling to try to keep it in the final bill. Ultimately, while I have long been skeptical of the constitutionality of this attempt by the House to force the president's hand, it does show the wisdom of limiting the congressional role in foreign policy decision making and making it difficult for Congress to supersede the will of the president. Public opinion against the war may have bolstered the Democrat's in the November elections, but they're ultimately not willing to do what it takes to bring the boys home. Congressional spinelessness and unwillingness to appear soft on terror or unsupportive of the troops means that Congress will continue to snipe at the president's policies and the conduct of the war while avoiding all responsibility for the outcomes. A very unsurprising outcome.

A Coming Constitutional Crisis (?)

The US Senate has voted to support a date for the withdrawal of US troops from Iraq. In a 50-48 vote, the Senate rejected a motion to remove the withdrawal language from the spending bill, meaning that the bill providing the money for the military operations in Afghanistan and Iraq requires a gradual pullout of combat troops from Iraq to begin within 120 days and to be completed by March 31, 2008 (although the final date is non-binding). The spending bill will be voted on later this week but is almost certain to pass given this vote outcome. Then, the Senate will have to sit down with the House of Representatives to reconcile the two versions of the bill, as the House version contains a mandatory withdrawal deadline of September 2008. The president has threatened to veto the bill and will most likely do so immediately after final passage.

What's the likely outcome here? When President Bush vetoes this bill, Congress will have two options: Strip the language out in order to get the bill passed (of course, Congress could leave in non-binding language to make a point but not actually have any impact) or pass an identical bill to put the issue back in President Bush's court. Remember, this bill is the funding for the operations in Afghanistan and Iraq. Without it, military operations will have to be halted in a few months, at most. So if Congress continues to pass funding bills with binding withdrawal deadlines, at some point Bush will have to either allow the bill to become law, at which point he could either comply or refuse to comply (more on this later) or he could continue to veto the bill, let the funding run out on the troops in the field and blame Congress for abandoning the troops. For obvious political reasons, that last option is a disaster for Congress and the president alike, and both sides will want to avoid that outcome like the plague.

The most likely result of this is that once the president vetoes the spending bill, Congress will crow about the president obstructing the will of the people and then pass a bill without the withdrawal language. This enables Congress to do what it does best in foreign affairs: Express dissatisfaction with the current policies but avoid taking responsibility for it by refusing to force any changes.

If I had my druthers, however, I'd like to see Congress continue to pass bills that require a withdrawal that would force the president to sign the bill and then refuse to adhere to the deadline, claiming that the congressional action is an unconstitutional encroachment on the presidential war powers, specifically the commander-in-chief power. All too often, pending constitutional debates like these never get resolved because one side backs down for political reasons. But, as I read things, the spending bill as it is likely to be passed is, in fact, unconstitutional. Yes, Congress has the power of the purse over the US military. But the bill is not worded in the proper way to use that power. Simply placing withdrawal language in an appropriations bill is not the same as putting restrictions on the use of the appropriated funds. If Congress wants to stop the use of US military troops in Iraq, it needs to refuse to allow the president to use monies for that purpose. Congress is understood to not be allowed to "micro-manage" the military, and telling the president to withdraw troops is exactly what Congress cannot do. If the president signed the bill and refused to implement it, we would very likely get a Supreme Court decision on the war powers, which is all too rare and all too necessary.

The spending bill as it stands represents a congressional abdication of the role it is all too quick to loudly proclaim for itself. It is not a serious attempt to check the president, to bring the troops home, or to enforce the will of the American public. Rather it has the appearance of doing so without bringing the responsibility for such actions on Congress. The ultimate result of this will be nothing; until Congress grows a spine and refuses to appropriate funds for the war in Iraq, it will continue according to President Bush's plan.

Congress Makes A Move

The US House of Representatives has apparently decided to challenge President Bush head-on about the length of the Iraq War. House Democrats today unveiled legislation designed to bring all US combat troops in Iraq home by the fall of 2008, at the latest. If the Iraqi government does not meet certain specified benchmarks of progress, troops would be withdrawn earlier. The bill would require President Bush to certify by July 1 and October 1 that the Iraq government is making satisfactory progress in providing security for the country, distributing oil revenues, and improving the method by which the constitution can be amended; if President Bush in unable to certify progress, all US combat troops would be withdrawn in six months. Assuming progress is made, troop would begin leaving Iraq in March 2008 and all combat soldiers would be back by September. The bill also requires the Pentagon to enforce its standards for training and equipping all troops being sent into Iraq, but allows Bush to issue waivers of the requirements (the intent is to force the president into publicly admitting that the troops are lacking equipment and training).

It is not entirely clear that the bill will pass the House. Nearly every Republican is likely to oppose it, and several Democrats have already spoken out against the bill. If it does pass, however, President Bush would face a difficult decision of whether to veto, as it will contain an extra $1.2 billion for the war in Afghanistan and $3.5 billion more for veterans' care and health care for active troops.

If the bill passes, the most likely outcome is that President Bush would not veto it, and instead simply ignore its dictates. The bill is of highly dubious constitutionality, as it smacks of the sort of micro-managing the US military that is off-limits to Congress. Congress' war powers do not extend to telling the president how many troops he may deploy to a combat zone. Congress could deny funding to the president for combat operations in Iraq, which would force the withdrawal of troops. But the president is the commander-in-chief of the US military, and only the commander-in-chief can make decisions about troop levels. The standards for training and equipment sound like they would fall under Congress' power to make rules for the regulation of the armed forces, but Congress has yielded such specific rule-making to the Department of Defense; any interference now without a statutory change would be unconstitutional.

This move by Congress will not succeed at bringing the boys home. If Congress really wants to end the war, it will have to step up, cut off the funding, and accept responsibility for the outcome. Anything else is merely spineless posturing.

Congress Makes The Wrong Move

The Associated Press is reporting that the US Senate is moving to revoke the 2002 authorization for the invasion of Iraq. That resolution gave President Bush the power to use the American military "as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq."According to the report:

Key lawmakers, backed by party leaders, are drafting legislation that would effectively revoke the broad authority granted to the president in the days Saddam Hussein was in power, and leave US troops with a limited mission as they prepare to withdraw.

Officials said Thursday the precise wording of the measure remains unsettled. One version would restrict American troops in Iraq to fighting al-Qaida, training Iraqi army and police forces, maintaining Iraq's territorial integrity and otherwise proceeding with the withdrawal of combat forces.

Such a plan is more appealing to senators uncomfortable with the other option being explored by opponents of the war: the "slow bleed" plan being developed by Rep. John Murtha that is intended to limit the ability to deploy soldiers into Iraq by placing strict requirements on training and funding.

It probably doesn't matter which route Congress takes to try to end the Iraq war, as both paths are very likely unconstitutional. While it's not clear, Murtha's plan very likely violates the constitutional authority of the president as commander-in-chief as the plan seems to go beyond Congress' role of making rules of the government and regulation of the armed forces. The Senate's plan will likely be vetoed, but it wouldn't have to be. Congress has long ago ceded any responsibility for the control and deployment of the US armed forces. While the president did ask Congress for authorization, the administration also made it clear that it did not have to do, as all administrations have done since the passage of the War Powers Resolution. As I have argued in many posts, Congress' role in such matters is limited to funding the military and declaring war. If Congress really wants to end the US military involvement in Iraq, it will have to cut off funding for the troops.

The Watada Case And The Legality Of The Iraq War

Sean Penn is currently in Tacoma as are hundreds of protesters, all here to offer their support for First Lieutenant Ehren Watada who goes on trial today for his refusal to deploy to Iraq with his unit. Watada is charged with missing a movement and conduct unbecoming an officer for his refusal and his public denunciations of President Bush and the war. While a number of enlisted men have refused deployment, Watada is the first officer to do so. Watada will claim that he has the right to refuse an unjust order and that the war is unjust because no weapons of mass destruction -- the primary justification for the invasion -- were ever found. This claim is exceedingly unlikely to hold up.

But it was not Watada's primary defense. His main reason for refusing deployment, which was thrown out of court by the military judge, was the the war is itself illegal. On what grounds could the war be considered illegal? For the war to be illegal, it must violate either national or international law.

The Iraq War is, plain and simple, legal under US law. Of this, there is no dispute. Congress authorized the war, but even if Congress had not done so there war would still have been legal. Congress has made no legislative effort to end the war or even to constrain the president's ability to prosecute it. Thus, the war is legal under US law (except as argued below).

What about international law? Watada's claim, now barred from being presented in court, was that the war violated US commitments under the UN Charter. The UN Charter is a treaty that was formally ratified by the US Senate; under the Supremacy Clause, ratified treaties are part of "the supreme law of the land"; thus, the UN Charter is, along with its restrictions on the use of force, supreme law of the United States and a war launched in violation of the UN Charter is illegal under both international and national law. Under the UN Charter, the use of force against a state is only permissible under two conditions: Authorization by the UN (which has only occurred twice: the Korean War and the first Gulf War), or in self-defense from an imminent attack (as in the case of Israel and the Six-Day War). Since there was no authorization from the UN, and since Iraq did not pose an imminent threat to the US, the invasion is, according to this logic, illegal.

Unfortunately, this argument fails to hold water on several grounds. First, while many analysts are skeptical, the Bush Doctrine conflates the concepts of preventive war with preemptive war, making it possible to argue that the invasion of Iraq was in fact preemptive. Whether or not one agrees with this claim, there is no objective measure of what constitutes an imminent threat. Thus, the argument fails from being too vague.

Second, the legal status of the UN is questionable in and of itself. Law can only be meaningful and enforceable when and where it enforced fairly and consistently, and the UN is far from meeting this standard. States are free to routinely violate their commitments and obligations to the UN with impunity; genocide occurs with little response; and the UN is incapable of implementing its own rules and laws. Law cannot be selective; if the UN fails to uphold its laws on non-proliferation or genocide it cannot expect adhere to other laws, such as those governing the use of force.

Most importantly, however, is the argument that rests on the Supremacy Clause. In order for a ratified treaty to become "the supreme law of the land" it must either be self-executing or must be passed into law by both houses of Congress, and not just ratified by the Senate. A self-executing treaty is one that is clearly intended to replace or supersede existing legislation and thus would need no further implementation by Congress. According to the American Society of International Law:

Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are "self-executing" or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.

In order for Watada's claim to hold up, the UN Charter must be seen as self-executing, as there has not been any legislation transferring the war powers of either the president or Congress to the UN. The relevant section of the UN Charter is Chapter VII, the most critical articles of which are:

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

That language certainly does not approach the level of specificity present in congressional legislation to make it self-executing. US courts have repeatedly held that the Charter is in fact not self-executing. Thus, absent legislation authorizing its provisions, the Charter cannot be held to supersede existing US constitutional law or legislation and therefore its rules concerning the use of force do not bind the US government.

Watada will go to jail, likely for four years. US military officers cannot decide for themselves when and where they will serve. I am disappointed that the court will not hear the real "meat" of Watada's argument, as it is both interesting and important. But that does not change the fact that Iraq War may have been ill-planned, but is not illegal.

UPDATE (2/24): The Army has refiled charges against Watada, who stands accused of missing deployment and four counts of conduct unbecoming of an officer for his public speeches. The Army has also added two new conduct-unbecoming charges that were dropped as a result of an agreement in the first trial. Watada's lawyer will file a motion to dismiss based on double jeopardy protections.

US Out Of Iraq! Sometime...If the Conditions Are Right...

If last November's elections were a referendum on, among other things, President Bush's and the Republican congressmen's handling of the Iraq War, then why do the newly politically dominant Democratic Party have more to say on bringing the troops home and ending the war? With the possible exception of Sen. Biden, who has recommended decentralizing the various ethnic regions and increasing the autonomy of the Shiites, Sunnis, and Kurds alike, no Democratic senator or congressman has proposed any kind of reasonable plan to deal with the situation. When faced with President Bush's surge (which I'll write more about later today), the Democrats respond with a vote "urging the president not to send more troops" that does not carry the force of law.

Why not? Why aren't those opposed to the war in Iraq, those who want to bring the troops home immediately, those who won last November's referendum on Iraq, why aren't they pushing through laws to force the president's hand? Unfortunately, most in Congress are much more interested in ensuring their own reelection than they are about actually changing things on the ground. It took more than 10 years and 57,000 casualties for Congress to muster the nerve to cut off funding for the Vietnam War, and it only did so after the troops had already come home. Our elected officials are terrified that if they go on record with a vote to bring US soldiers home they'll be branded as not supporting the troops which will hurt them in the next election. Furthermore, going on the non-binding record makes it possible to play both sides of the coin: If the surge works, they can't be blamed for opposing it; if it fails, they can point to the vote and say "see, I was against it all along." This all too common a pattern when Congress becomes involved in foreign policy, and goes a long way to explaining why the presidency has become so dominant in foreign affairs. Congress simply lacks the guts and spine to do what has to be done.

Where is the courage of their convictions?

UPDATE: Terry Michael, a former press secretary for the Democratic National Committee, wonders the same thing:

Take Sen. Joseph Biden of Delaware. "There's not much I can do about it," responded the Democratic "leader" on foreign policy, when asked on one of the Sunday venues for pompous pontificators how he would respond to any attempt by President Bush to escalate the war in Iraq (or "surge," if you prefer it in Orwellian newspeak).
This is a man who sees a future president during his morning look in the mirror. Sadly, the glass reflects an empty suit who embodies the congressional Democrats' decision to reduce action on Iraq to a political calculus appropriate for the highway appropriations bill, rather than as a moral imperative to challenge a policy that has sent thousands of twenty-somethings to their deaths in the desert.
You certainly can do something about it, Senator. It's called leadership. You rise on the Senate floor. You say you were out of your mind to write a blank check for this hideous misprojection of American military power. And then you propose immediate withdrawal, just slow enough to maximize the safety of the 135,000 mostly young men and women you helped put in harm's way by your collusion with this elective war. You do what Republican Sen. Gordon Smith of Oregon had the guts to do last month, stopping just short of accurately labeling this public policy obscenity a criminal enterprise.

The Legal Status of the Iraq War

The Associated Press is reporting that Lieutenant Ehren Watada will be court-martialed for his refusal to deploy with his unit to Iraq. Watada will be charged with missing troop movements, conduct unbecoming of an officer, and contempt towards officials for comments he made about President Bush (military officers have a legal duty not to publically disparage their superiors). Watada's defense is that the Iraq War is illegal, and thus his obligation as a US solider to refuse unlawful orders precludes him from deploying. According to Watada's lawyer, “This case is really about the duty of individual soldiers to look at the facts and fulfill their obligation to national and international law.”

Since the attempt by Nazis to use the "only following orders" defense in the Nuremberg trials, there is a strong belief that individual soldiers must be allowed to refuse illegal orders. But, can it be claimed that the Iraq war is illegal? Certainly not under US law. The war was most definitely authorized by the US Congress. But can Watada defend his actions by claiming that the invasion and occupation are illegal under international law? After all, the Supreme Court in Hamdan v. Rumsfeld found that the Geneva Conventions are binding law on the US and limit the ability of the president to use military commissions.

However, the Supremes did something else in Hamdan. While international law may exist and may in fact, when signed by the president and ratified by the Senate be the binding equivalent of domestic law, it is not sacrosanct or immutable. In fact, the Court told the Bush Administration that it could in fact convene military tribunals in the desired form, but only if Congress passed a law permitting it to do so. Thus, international law only binds the US so far as Congress hasn't superseded it with a new law. Since the US Congress has in fact authorized the Iraq War, it's legal status vis-a-vis international law is moot.

Unfortunately for Lt. Watada, his defense will fail, and he will go to jail for a very long time.