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Senate Judicary Committee Takes on Bush’s War: ‘He Is Not the Sole Decider’

by Pamela Leavey

Senate Democrats today, asserted the right to block Bush on the Iraq War in a Subcommittee Hearing of the Senate Judiciary Committee led by Senator Russ Feingold. The hearing started laying the constitutional groundwork “for an effort to block President Bush’s plan to send more troops to Iraq and place new limits on the conduct of the war there, perhaps forcing a withdrawal of American forces from Iraq.”

They were joined by Senator Arlen Specter, the Pennsylvania Republican who led the panel for the last two years, in asserting that Mr. Bush cannot simply ignore Congressional opposition to his plan to send 21,500 additional troops to Iraq.

“I would respectfully suggest to the president that he is not the sole decider,” Mr. Specter said. “The decider is a joint and shared responsibility.”

Mr. Specter said he considered a clash over constitutional powers to be “imminent.” The Senate next week will take up competing proposals that would express disapproval of Mr. Bush’s plan.

Senator Russell Feingold, a Wisconsin Democrat who acted as chairman for the hearing, said he would soon introduce a resolution that would go much further. It would end all financing for the deployment of American military forces in Iraq after six months, other than a limited number working on counterterrorism operations or training the Iraqi army and police. In effect, it would call for all other American forces to be withdrawn by the six-month deadline.

“Since the President is adamant about pursuing his failed policy in Iraq, Congress has a duty to stand up and prevent him,” Mr. Feingold said.

Here’s some highlights of the hearing today from PoliticsTV.com:

Senator Ted Kennedy said, “Today is a welcome first step in reclaiming our responsibility under the Constitution as a co-equal branch of government, with specific powers of our own in matters of war and peace. ” His full statement at the Senate Judiciary Subcommittee Hearing on Congress’ Constitutional Power to End a War, as prepared for delivery, is below:

I commend Senator Feingold for chairing this very important hearing. The Iraq war is the overarching issue of our time, and Congress’s power to shape and, if necessary, end the war is a subject of critical importance.

For four long years, the President’s assertion of unprecedented power has gone unchecked by Congress. Today is a welcome first step in reclaiming our responsibility under the Constitution as a co-equal branch of government, with specific powers of our own in matters of war and peace.

We also intend to renew the exercise of our oversight responsibility. For too long, the Administration was allowed to operate in secrecy. Not just in Iraq, but also here at home—detentions in defiance of the Geneva Conventions, eavesdropping on people’s telephone calls, reading their mail, and reviewing their financial records, all without judicial authorization.

President Bush has made clear that he intends to move ahead with his misguided plan to escalate the war. That’s the hallmark of his presidency—to go it alone and ignore contrary opinions. The American people spoke out against the war at the ballot box in November. Our generals opposed the escalation. They do not believe adding more American troops can end a civil war or encourage the transfer of responsibility to the Iraqis, but their warnings have gone unheeded. Now, Congress is about to consider a non-binding resolution of no confidence in the President’s reckless last-ditch effort to salvage his strategy.

Passage of the non-binding resolution will send an important message about the need for a different course in Iraq, but it’s only a first step. The President has made clear that he intends to ignore non-binding resolutions. If we disagree with the President’s failed course, it will take stronger action to stop him. We cannot stand by as the President sends more of our sons and daughters into a civil war.

I’ve introduced legislation to prohibit the President from raising the level of U.S. troops in Iraq unless he obtains specific new authorization from Congress for the escalation. The initial authorization bears no relevance to the current hostilities in Iraq. There were no weapons of mass destruction and no alliance with al Qaeda, and Saddam Hussein is no more. The President should not be permitted to escalate our involvement unless Congress grants its approval.

Others have introduced similar bills to prevent the President from deepening our involvement in Iraq. We have all been met with the charge that Congress is exceeding its constitutional powers by limiting the actions of the Commander-in-Chief. That ill-considered charge reflects how accustomed people have become to a government dominated by the Executive Branch, unchecked by a compliant Congress.

That’s not the constitutional system established by the framers for dealing with matters of war and peace. They gave specific powers and responsibilities to Congress to define the shape and scope of a war. Article I, Section 8 of the Constitution gives Congress authority to collect taxes to provide for the common defense, declare war, raise and maintain the army and navy, make rules concerning the government and regulation of the armed forces, and provide for calling out the militia. It also gives Congress all powers necessary and proper to carry out these responsibilities. The framers made the President the Commander-in-Chief. They contemplated, in broad terms, that Congress would make the determination to go to war, define its parameters and provide the resources that it determined appropriate. The President as Commander-in-Chief would have operational authority to execute those instructions and to defend the nation in the absence of congressional action.

In the Steel Seizure Cases in 1952, the Supreme Court invalidated President Truman’s attempt to take control of the steel industry during the Korean War. As James Madison wrote to Thomas Jefferson in 1798: “the constitution supposes what the History of all Gov[ernments] demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative branch].”

According to a letter sent to the leaders of Congress last week by twenty-three of the nation’s most eminent constitutional scholars (two of whom are here today), Congress can exercise its authority to redirect or terminate an ongoing conflict in two ways. It can enact specific limits on the scope of the conflict, and it can use the power of the purse to deny funding for all or parts of a conflict.

Congress has followed both paths in prior wars. During the Vietnam War, Congress repealed the Gulf of Tonkin Resolution of 1964, which many of us felt had been misused to justify the escalation of America’s involvement in Vietnam. Congress also prohibited the reintroduction of troops into Cambodia after President Nixon’s escalation. We went on to cap the number of American troops in Vietnam and, eventually, cut off funding for the war when the White House left us no alternative.

In 1983, Congress required President Reagan to “obtain statutory authorization from Congress with respect to any substantial expansion in the number or role” of U.S. forces in Lebanon.

A decade later, Congress passed legislation prohibiting President Clinton from using funds for military operations in Somalia without specific authorization by Congress.

Exasperated by the action of successive Presidents on the Vietnam War, Congress enacted the War Powers Act in 1973 over President Nixon’s veto. The Act requires Presidents to consult with Congress before placing troops in harm’s way, seek authorization to keep them there, and continue consultation as the conflict progresses. This congressional assertion of power in matters of war and peace resonates loudly today.

Opponents of congressional power have mischaracterized any use of it as an abandonment of our soldiers on the battlefield. Nothing could be further from the truth. No responsible legislator would take any action that endangers our troops. In fact, using congressional authority to force a change of course in Iraq is the best way to protect our troops. Requiring a change of course by using the “power of the purse” or taking other action will not mean taking equipment and supplies away from our troops. We will avoid the mistake that the President made in sending our troops into Iraq without adequate armor and without a plan to win the peace. There is no reason for Congress now to shy away from exercising the full range of its constitutional powers.

For too long, Congress has given President Bush a blank check to pursue his disastrous policy in Iraq. He should not be permitted to take the desperate step of sending even more troops to die in the quagmire of civil war, without convincing Congress why this escalation can succeed where others have failed. As the constitutional scholars concluded in their recent letter to leaders of Congress: “Far from an invasion of presidential power, it would be an abdication of its own constitutional role if Congress were to fail to inquire, debate, and legislate, as it sees fit, regarding the best way forward in Iraq.” We must not abdicate that responsibility any longer.


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  • 2 Responses to “Senate Judicary Committee Takes on Bush’s War: ‘He Is Not the Sole Decider’”

    1. […] rs:   Has Congress Amended An AUMF In The Past? Pamela Leavey / The Democratic Daily:   Senate Judicary Committee Takes on Bush’s War: ‘He Is Not the Sole Decider’ Steve Ba […]

    2. An Iraq “Facts for Funds” Agreement could avoid separation of powers issues, while meeting the needs of Congress, the Administration, and Iraq.
      If the administration volunteers to testify without restriction on Iraq/ Iran/ War-on-Terror, Congress could authorize funds for the Mideast in such a way that the agreement would be voided if anyone in the administration refuses to answer questions or testifies untruthfully.
      Congress and the public would get the truth, which would indirectly influence the administration toward a realistic policy. The administration would get bipartisan support, which would help make the policy work.