War Powers

I’ve been thinking about comments to the last post regarding war powers and presidents. Seems to me that if we ever take our country back from the wingnuts we’ve got to revisit the issue of war powers.

First, we need to rethink war itself. How do we distinguish a “state of war” from a “military action”? Is the U.S. in a state of war every time any American soldier somewhere in the world is under fire? Is the U.S. in a state of war when, for example, American military personnel take part in a NATO action such Kosovo?

You might remember this CBS interview of Condi Rice by Wyatt Andrews (November 11, 2005):

QUESTION: Madame Secretary, thanks for joining us. I want to start with the Congressional investigation into “exaggerated intelligence.” Why the counter-offensive? Mr. Hadley was out yesterday. The President seems to be out today. Why the counter-offensive?

SECRETARY RICE: Well, this is simply a matter of reminding people of what the intelligence said about Iraqi weapons of mass destruction, about the fact that for 12 years the United Nations passed Security Council resolution after Security Council resolution calling on Saddam Hussein to cooperate about his weapons of mass destruction, about report after report, after report that talked about the absence of any data on what he had done with these weapons of mass destruction and calling on him to make a full account, the fact that we went to war in 1998 because of concerns about his weapons of mass destruction.

So Saddam Hussein and weapons of mass destruction were linked. The Oil-for-Food program —

QUESTION: Madame Secretary, I don’t mean to interrupt, but you said ’98. Did you mean ’91?

SECRETARY RICE: No, I mean in ’98 when there was —

QUESTION: You mean the cruise missile —

SECRETARY RICE: That’s right, when there were cruise missile attacks to try to deal with this weapons of mass destruction, and the fact that he was not cooperating with the weapons inspectors. And of course, you can go back to ’91 when we found that his weapons programs had been severely underestimated by the IAEA and others. So I think that is what people are reminding us, what the intelligence said prior to the war.

Did you know we were at war in 1998? It slipped right by me. But lo, here’s an article on the Weekly Standard web site about the glorious “Four Day War” of 1998.

Of course, the Weekly Standard probably didn’t call it a Four Day War in 1998. I’m not a Weekly Standard subscriber and don’t have access to their archives, so I don’t know for sure. But considering that this glorious little war began on December 16, 1998, and that the House began formal hearings to impeach President Clinton on December 19, 1998, it doesn’t seem some people were standing behind their President in time of war. Or maybe they were behind him, but they had knives out at the time.

In fact, Condi and the Weekly Standard were both taking part in a “Clinton did it too” propaganda effort designed to blame President Clinton for President Bush’s “mistake” about the WMDs. The Four Day War, not recognized as such as the time, was declared retroactively for political expedience. My point is that wars are getting awfully subjective these days. Right now most of us on the Left think of the War on Terror as a metaphor, but righties see it as a real shootin’ war, by damn, just like WWII. If John Wayne were alive he’d be makin’ movies about it already.

When is a war, a war? We know there’s a war when Congress declares war, but what about undeclared wars?

I wrote about this last December, and our own alyosha added an excellent analysis in the comments that deserves another read. In a nutshell, it appears we’re moving into a new phase of history in which wars between nations will be rare. Instead, “wars” will be waged by decentralized organizations with no fixed national boundaries or territories. Such wars won’t have recognizable ends, because there won’t be a surrender or a peace treaty. It’s likely we’re going to be involved in some level of military actions against such organizations pretty much perpetually for the rest of our lives. What seemed to be a state of emergency after 9/11 is now the new normal.

I believe we need to re-think constitutional war powers in light of this new reality.

The Constitution [Article I, Section 8] says Congress shall have power

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

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 …

On the other hand, the President (Article II, Section 2)

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.

Now, I interpret that to mean that the President’s military role is subordinate to Congress’s military role. In any event, Congress is supposed to be the part of government that decides whether we’re at war or not. But then there’s the pesky War Powers Act, which says,

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Dahlia Lithwick provides background on the War Powers Act here. See also John Dean. Both of these articles were written immediately after 9/11, before we were publicly talking about invading Iraq.

For the moment I’m putting aside consideration of how closely Bush is adhering to the War Powers Act provisions. Instead, I just want to suggest that Congress revisit the statutory authorization thing so that future presidents can’t fear-monger the nation into a war that drags on for years after the original causes of the war were found to be smoke and mirrors.

It’s one thing to give a President some room to maneuver in case of emergency, and he has to act to protect the United States and its territories before Congress can get itself together to declare anything. But when there is no emergency, especially no emergency to the territory of the United States, I see no reason for Congress to hand off its war-declaring powers to the President. No more undeclared wars. If someone can think of a reason this would be a bad idea, I’d like to hear it.

If the President wants to use some limited military action — say, a four-day bombing campaign — Congress can give permission — a “use of force” resolution — but Congress should stipulate limits (in time or resources, or both), and it must be made clear that this resolution is not equivalent to a war declaration and the President is not to assume any special “war powers.” That is, he’s not to assume any powers the Constitution doesn’t give him in peacetime.

What if a President declares an emergency and starts a war per clause 3 in the paragraph above, but Congress looks on and says, WTF? There’s no emergency! There should be some way for Congress to be able to rein in the President in this circumstance — Sorry, no emergency! You’ve got so many days to bring the troops back, or it’s mandatory impeachment! I’m not sure how that would be done, but it’s clear we need to provide for it to keep future Bushes in check.

Regarding presidential war powers — the Constitution makes no provision for presidents to take on extra powers during war. In the past, some presidents have taken extraconstitutional actions when they believed it was necessary to save the nation from an enemy or insurrection. Lincoln’s suspension of habeas corpus is the standard example. People still argue whether he was justified in doing so, but the circumstances were extreme — citizens, not just armies, were shooting and killing each other and were also shooting at militia called to Washington to protect the capital. In some places civil authority had completely broken down. And Lincoln acted openly, not secretly, and he made it clear he was only taking this action without prior consent of Congress because Congress was not in session and the emergency was dire. When Congress came back into session Lincoln requested approval for his actions. The power he had used rightfully belonged to Congress, and he didn’t claim otherwise.

Bush, on the other hand, acts in secret, and usurps powers of Congress when Congress is in session. There’s no excuse for that unless the threat to the nation is immediate — a mighty enemy navy is about to land in Oregon, for example. Otherwise, he is obliged to work with Congress and abide by laws written by Congress, as I argued in the last post. Otherwise, he’s setting himself up to be a military dictator.

So on the first day of the Post-Bush era, when we have a new birth of freedom and can begin to function as a real democracy again, we should come up with some laws — maybe even a constitutional amendment to be sure it sticks — that will be binding on future presidents and congresses. Vietnam might have been a fluke, but Vietnam and Iraq in one lifetime reveal a flaw in the system that needs correcting.

The Unitary Executive, Part II: What It Is and Why It’s Bad

The Founding Guys feared tyranny above all else. That’s why they crafted a Constitution with built-in protections against tyranny. These protections are referred to as “separation of powers” or “checks and balances.”

This page nicely explains the protections at an 11th-grade level. At the federal level, “separation of powers” calls for the government to be divided into three branches, with each branch having particular powers. At the same time, each branch has certain powers over the other branches. This is the “checks and balances” part — it prevents any one branch from gaining too much power over the other two. Here’s another kid-level page explaining the same thing. If you went to school in the United States you should have learned this stuff by no later than the sixth grade.

It appears Dear Leader napped through sixth grade Social Studies. Oh, he got the “separation of powers” part of the lesson. He likes that part. But the “checks and balances” part — not so much. Bush’s “unitary executive” doctrine says that he can ignore the other two branches of government whenever he likes, because any attempt to oversee or regulate what Bush wants to do is an encroachment on his powers.

What is the “unitary executive” doctrine? Jennifer Van Bergen wrote for FindLaw,

The unitary executive doctrine arises out of a theory called “departmentalism,” or “coordinate construction.” According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach “holds that all three branches of the federal government have the power and duty to interpret the Constitution.” According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

As a practical matter, since the executive branch is the one that executes and enforces law, this doctrine says the President can override whatever Congress and the Courts might think and put his own revision of law into effect. Van Bergen continues,

The coordinate construction theory counters the long-standing notion of “judicial supremacy,” articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: “It is emphatically the province and duty of the judicial department to say what the law is.”

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the “Take Care clause” to preserve, protect, and defend the Constitution and to “take care” that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush’s recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution — even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush’s oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it – and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn’t like – even though they were validly passed by Congress and signed into law by him?

Also at FindLaw, John Dean wrote in “Vice President Cheney and The Fight Over ‘Inherent’ Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11,”

[Attorney General Alberto] Gonzales’ position is that the President can make his own rules, notwithstanding the existence of a federal statute – the Foreign Intelligence Surveillance Act (FISA) – that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies “the equilibrium of our constitutional system” to use Chairman Specter’s words – treating Congress’ clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime.

In effect, Bush thinks he’s above the law.

Equally illogical is Vice President Dick Cheney’s position — and if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history. Let me start by describing his give-no-quarter stance.

After the Attorney General’s testimony concluded, and given the doubts expressed about it by both Republicans and Democrats on the Senate Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President Bush would cooperate with Congress to “settle some of the legal disputes about the NSA surveillance program?” Cheney responded with a polite, hell no. (Incidentally, this was Cheney’s first interview with other than a conservative news person.) “We believe, Jim, that we have all the legal authority we need,” Cheney said. “[The President] indicated the other day he’s willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest.”

The President will listen to ideas and suggestions from the Congress, but he will not follow a law it has written (and a prior President has signed into law) on the subject? This is not exactly a logical stance.

No, but it is setting us up for a nice constitutional crisis.

Joyce Appleby and Gary Hart write,

Relying on legal opinions from Attorney General Alberto R. Gonzales and Professor John Yoo, then working in the White House, Bush has insisted that there can be no limits to the power of the commander-in-chief in time of war. More recently the president has claimed that laws relating to domestic spying and the torture of detainees do not apply to him. His interpretation has produced a devilish conundrum.

President Bush has given Commander-in-Chief Bush unlimited wartime authority. But the “war on terror” is more a metaphor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors. No peace treaty can possibly bring an end to the fight against far-flung terrorists. The emergency powers of the president during this “war” can now extend indefinitely, at the pleasure of the president and at great threat to the liberties and rights guaranteed us under the Constitution.

“We now confront a constitutional crisis,” say Appleby and Hart, who bring up some opinions offered by James Madison in the Federalist Papers to explain why this is not how it’s supposed to work. And, frankly, you don’t have to be a lawyer or constitutional scholar to see this is true.

Much has been made of the fact that Cheney et al. want to “restore” presidential power that Congress stripped away after Watergate. This bit of history leaves out the fact that by Nixon’s time presidential power had expanded to an unprecedented degree. It’s not as if Congress took powers away that had been assumed by all the other presidents before Nixon. Indeed, it was a common belief among Whigs that the President should do little more than execute the will of Congress. At various times — the latter part of the Andrew Johnson administration comes to mind — Congress pretty much ran everything, and the President was little more than a figurehead who was cleaned up and trotted out for ceremonial purposes. I’m not saying that was ideal; I’m just saying that’s how it was at times. What Cheney wants to restore is not some Golden Age of Constitutional Originalism; he just wants to restore the Golden Age of Nixon.

But what is disheartening — not surprising, but disheartening — is the degree to which allegedly “libertarian” conservatives either defend the “unitary executive” doctrine or swat it away as some niggling detail only important to liberals. Glenn Greenwald wrote about this here and elsewhere.

… many Bush defenders are now arguing, as they must, that a “wartime” President’s power is so vast that it even includes this law-breaking power.

But the same individuals peddling this theory are simultaneously objecting quite vigorously to the notion that they are bestowing George Bush with the powers of a King. Bill Kristol and Gary Stevenson, for instance, called such claims “foolish and irresponsible” in the very same Washington Post Op-Ed where they argued that Bush need not “follow the strictures of” (i.e., obey) the law, and the President himself angrily denied that he is laying claim to a “dictatorial position” in the very same Press Conference where he proudly insisted on the right to eavesdrop on Americans without a warrant even though FISA makes it a crime to do so.

Bush supporters argue that the unitary executive doctrine does not amount to giving Bush dictatorial power, but they’ve yet to articulate where the limits are. Instead, they wave the flaming WTC tower and insist Bush must have these powers to protect us from terrorists.

Susie Madrak wrote today,

People have this Saturday-matinee picture in their heads of what a coup looks like. It involves black-and-white footage of modern-day Nazis, and tanks in the street. They believe those who destroy our democracy will telegraph their intentions in such a way that any action movie fan will easily identify the bad guys.

It never occurs to them the bad guys won’t sell themselves as such, because we are a nation largely immune to political nuance. And that is why we are watching our great democratic experiment being flushed down the bowl.

God help us.

Along these lines — go read one of the all-time great anti-Bush rants. Jane Smiley says it all.

More Than a Feeling

When The Guardian reported last February about another Downing Street memo in which President Bush suggested luring Saddam Hussein into war by “flying U2 reconnaissance aircraft planes with fighter cover over Iraq, painted in UN colours,” there was much scoffing and hoo-hawing from the Right.

But today the New York Times reveals that the memo is real. Don Van Natta reports,

During a private two-hour meeting in the Oval Office on Jan. 31, 2003, he [Bush] made clear to Prime Minister Tony Blair of Britain that he was determined to invade Iraq without the second [UN] resolution, or even if international arms inspectors failed to find unconventional weapons, said a confidential memo about the meeting written by Mr. Blair’s top foreign policy adviser and reviewed by The New York Times.

“Our diplomatic strategy had to be arranged around the military planning,” David Manning, Mr. Blair’s chief foreign policy adviser at the time, wrote in the memo that summarized the discussion between Mr. Bush, Mr. Blair and six of their top aides. …

… Stamped “extremely sensitive,” the five-page memorandum, which was circulated among a handful of Mr. Blair’s most senior aides, had not been made public. Several highlights were first published in January in the book “Lawless World,” which was written by a British lawyer and international law professor, Philippe Sands. In early February, Channel 4 in London first broadcast several excerpts from the memo.

Since then, The New York Times has reviewed the five-page memo in its entirety. While the president’s sentiments about invading Iraq were known at the time, the previously unreported material offers an unfiltered view of two leaders on the brink of war, yet supremely confident.

The memo indicates the two leaders envisioned a quick victory and a transition to a new Iraqi government that would be complicated, but manageable. Mr. Bush predicted that it was “unlikely there would be internecine warfare between the different religious and ethnic groups.” Mr. Blair agreed with that assessment.

The memo also shows that the president and the prime minister acknowledged that no unconventional weapons had been found inside Iraq. Faced with the possibility of not finding any before the planned invasion, Mr. Bush talked about several ways to provoke a confrontation, including a proposal to paint a United States surveillance plane in the colors of the United Nations in hopes of drawing fire, or assassinating Mr. Hussein. …

… Two senior British officials confirmed the authenticity of the memo, but declined to talk further about it, citing Britain’s Official Secrets Act, which made it illegal to divulge classified information.

Along with the U2 reconnaissance aircraft idea, attributed to Bush, the memos reveal Bush made two other suggestions: Finding a defector who would talk publicly about Saddam’s WMDs, and assassinating Saddam.

One quibble I have with the Times story is this:

By late January 2003, United Nations inspectors had spent six weeks in Iraq hunting for weapons under the auspices of Security Council Resolution 1441, which authorized “serious consequences” if Iraq voluntarily failed to disarm. Led by Hans Blix, the inspectors had reported little cooperation from Mr. Hussein, and no success finding any unconventional weapons.

In late January 2003 Hans Blix reported to the UN Security Council:

Iraq has on the whole cooperated rather well so far with UNMOVIC in this field. The most important point to make is that access has been provided to all sites we have wanted to inspect and with one exception it has been prompt. We have further had great help in building up the infrastructure of our office in Baghdad and the field office in Mosul. Arrangements and services for our plane and our helicopters have been good. The environment has been workable.

The inspection process was not without problems —

While we now have the technical capability to send a U-2 plane placed at our disposal for aerial imagery and for surveillance during inspections and have informed Iraq that we planned to do so, Iraq has refused to guarantee its safety, unless a number of conditions are fulfilled. As these conditions went beyond what is stipulated in resolution 1441 (2002) and what was practiced by UNSCOM and Iraq in the past, we note that Iraq is not so far complying with our request. I hope this attitude will change.

Is this what put U-2 planes in Dear Leader’s head? The Blix report is dated January 27, 2003. The Downing Street memo under discussion was dated January 31, 2003. Hmmm.

Juan Cole reported on February 4, 2006:

For all the world like a latter day Gen. Jack Ripper as depicted in Stanley Kubrick’s Dr. Strangelove, Bush was going to fly a US spy plane over Iraq painted in UN colors, in hopes Saddam would have it shot down, so as to provoke a war (and ‘protect our precious bodily fluids?’). This crackpot idea suggests the truth of the rumors that Bush never really did give up drinking heavily (or maybe it can only be explained by doing lines). Its context is explained by a kind reader who wrote in about my initial puzzlement to say:

    ‘ The Bush administration did get Saddam to agree to allow U2 flyovers under the nominal control of UNMOVIC in February. It seems likely that they expected Saddam to refuse, thus provide a suitable excuse for war. When he didn’t, they upped the ante by sending two at once in mid-March. The Iraqis still refused to shoot at them and instead complained through official channels.’

I’m looking for confirmation of this information, but so far all I’ve found is broken links. I’ll update this post if I find something. [Update: See comment from Ron Brynaert. More comments.]

Update: Historical revisionism per Captain Ed

By the time Bush met Blair at the White House, Hans Blix had reported that the Iraqis would not cooperate with the inspections, only paying lip service to the inspectors.

Already debunked, above. Blix reported some problems, but it was far from the truth to say that Iraqis “would not cooperate.”

Now, thanks to captured notes of Iraqi meetings, we know that Saddam remained confident that his bribery of France and Russia (as well as their well-known economic interest in maintaining their contracts with the Saddam regime) would result in a stalemate at the Security Council over any resolution opening military force as a consequence of failure. That may be why France practically begged Blair at that moment not to pursue a “second resolution” (actually a 17th); they assured both the US and the UK that the previous sixteen resolutions gave plenty of cause for action, but that France would find it politically impossible to vote for explicit military action against Iraq.

Ed, dear, the whole point of Bush’s and Blair’s conversation was to find a way either to force the UN’s hand in spite of the Security Council’s reluctance to issue a second resolution or to establish “cover” to make the invasion seem more legitimate without a second UN resolution. If anything, your “objection” underscores the importance of the January 31 memo.

By this time, had the US not had a plan for military action against Iraq, it would have been almost criminally neglectful. Why should it surprise anyone that two nations that faced war with Saddam Hussein would discuss the military strategy involved in that war?

This amounts to a stubborn determination not to see the point. Richard of the Peking Duck gets it —

In ordinary times, it would be a bombshell: A secret memo proves that our president told his people a series of lies leading to wanton and needless death and destruction. He had planned to wage his war no matter what, and was even prepared to create fake evidence to justify the invasion. It was never about unconventional weapons. The calls to disarm were bogus. It was to be war from day one. In ordinary times, he’d be impeached.

But these aren’t ordinary times. We are all so used to this sort of thing that it has almost no effect at all. It’s just another day in the Age of Bush, where we’re always winning the war and we’re always right and no mistakes are ever made. Here’s the killer line (though actually there are several):

    The memo also shows that the president and the prime minister acknowledged that no unconventional weapons had been found inside Iraq. Faced with the possibility of not finding any before the planned invasion, Mr. Bush talked about several ways to provoke a confrontation, including a proposal to paint a United States surveillance plane in the colors of the United Nations in hopes of drawing fire, or assassinating Mr. Hussein.

Now, faking scenarios in order to provoke another country into war is just what Hitler did with Poland, and is about the lowliest thing a government could do. It an act of pure deception and reveals total disrespect for the American people, playing them for fools. That he would have seriously proposed this should be major news. But I doubt it will be. We expect no better of him. And so, what would have been a death knell for Clinton will be water off a duck’s back for Bush. We’re too numb, too incredulous and dazed to care.

Or too drunk on Kool-Aid.

Update update: See also Tom Tomorrow.