Lies some right-wing lawyers told me

Posted by Joshua Holland at 8:05 AM on January 17, 2007.

When last we visited David Rivkin, Jr., and Lee Casey -- a couple of former Justice Department lawyers under Reagan and Bush I -- they were making a legal case for attacking Iran, and, in so doing, earning for themselves the title of 'right-wing ass-clowns' in perpetuity.

Yesterday, they once more took to the pages of the WaPo, this time to inform us that we only believe Congress is a branch of government co-equal with the executive when, in fact, it has almost no authority to rein in a president gone wild …

[Our] constitutional fabric features two coordinate political branches, with unique responsibilities and independent legitimacies. Thus, even if one assumes that, as critics allege, the November election results were a call for disengaging from Iraq, efforts by some congressional Democrats to chastise the president through a resolution of "no confidence" in his Iraq policy have no place in our constitutional culture. The Framers did not establish a parliamentary system.

This does not mean, of course, that Congress is powerless. It could -- if the leadership mustered veto-proof majorities -- immediately cut off funding for U.S. operations in Iraq. Alternatively, Congress could refuse to pass new appropriations once the current ones expire. The refusal to pay for particular policies -- whether in war or peace -- has been the most important check on executive power in the Anglo-American political tradition, dating to the British Parliament's ancient insistence on the right to seek redress of grievances before voting supplies (i.e., money) to the monarch. Under our constitutional system, however, the power to cut off funding does not imply the authority to effect lesser restrictions, such as establishing benchmarks or other conditions on the president's direction of the war. Congress cannot, in other words, act as the president's puppet master, and so long as currently authorized and appropriated funding lasts, the president can dispatch additional troops to Iraq with or without Congress's blessing.

In other words, echoing John McCain and others, the duo argue that there is nothing, short of cutting off all funding for the troops in Iraq, that the Congress might do to shape U.S. military policy. Not only can't they refuse to fund the preznit's escalation, even a non-binding resolution expressing the sense of Congress that sending a few thousand more troops into the maelstrom is a really bad idea would destroy the separation of powers and make the Baby Jesus cry.

But, as John Judis points out -- in a rare link to the execrable New Republic -- the Supreme Court has never found anything amiss in these kinds of resolutions. Their argument, notes Judis, consists of a "kind of legal sleight-of-hand":

They don't exactly say that introducing a non-binding resolution would be illegal under the Constitution, but that it is against the "constitutional culture" and the "constitutional fabric." "Efforts by some congressional Democrats to chastise the president through a resolution of 'no confidence' in his Iraq policy have no place in our constitutional culture," they write.

Yes, these are a couple of right-wing legal-eagles -- the type who so often claim to be "strict Constitutionalists" and who bemoan those "activist judges" who discern in the Constitution a right to privacy -- finding in the Constitution's penumbra some prohibition that's handy for the Bush administration just at this moment. Irony is dead.

And, as Judis points out, these guys apparently weren't troubled when, for example, Republicans offered non-binding resolutions criticizing Clinton for using force in Haiti and Bosnia without getting a nod from Capitol Hill.

But it goes further than that; not only have there been a number of nonbinding resolutions in the past, there are also numerous precedents for Congress putting restrictions on a war already in progress, as a report by the Center for American Progress (PDF) details …

… Past Congresses have chosen among several different policy levers to guide U.S. national security policy as it relates to the deployment of American troops. Broadly speaking, the Congress can:

• Condition, limit, or shape the timing and nature of troop deployments and the missions they are authorized to undertake;
• Cap the size of military deployments; and
• Prohibit funding for existing or prospective deployments.

Since 1970, there have been several instances in which these powers were exercised and passed into law by Congress. Several of these are detailed below. Each of these provisions reflects the basic fact that the Founding Fathers deliberately created a system of government containing branches that were both interdependent and competitive. Each has a specific role to play and each needs to respect the role of the other branches…

Additionally, there have been hundreds of amendments--which did not ultimately become law--where members of Congress sought to shape overseas deployments. These amendments reflect modern congressional understanding of Congress's power and authority. In particular, there were a series of attempts by Republicans and Democrats throughout the 1990s to influence deployments in the Balkans…

Examples of Funding and Authorization Limitations Enacted into Law

January 1991. P.L. 102-1 - A joint resolution authorizing the use of force against Iraq. Congress granted the president the authority to use force in Iraq but conditioned it on him first certifying that means other than war would not result in Iraqi compliance with UN Security Council resolutions.

October 1994. P.L. 103-423 - A joint resolution regarding U.S. Policy Toward Haiti. Congress supported a "prompt and orderly withdrawal of all United States Armed Forces from Haiti as soon as possible."

September 2001. P.L. 107-40 - A joint resolution authorizing the use of force in Afghanistan. The president initially sought authorization to use force to "deter and pre-empt any future acts of terrorism or aggression against the United States." The final resolution authorized "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks.

October 2002. P.L. 107-243 - A joint resolution authorizing the use of force in Iraq. Like the Afghanistan resolution a year earlier, the Iraq resolution reflected some changes sought by Congress. For example, the president initially sought authorization to use force "to restore peace and security in the region." Congress succeeded in striking that provision, and made the exercise of the authority granted in the resolution conditional on the president certifying that Iraq would not harm the war on terrorism, but it failed in attempts to insert other limitations on the president.

Troop Caps Enacted Into Law

December 1974. P.L. 93-559 - Foreign Assistance Act of 1974. The Congress established a personnel ceiling of 4000 Americans in Vietnam within six months of enactment and 3000 Americans within one year.

June 1983. P.L. 98-43 - The Lebanon Emergency Assistance Act of 1983. The Congress required the president to return to seek statutory authorization if he sought to expand the size of the U.S. contingent of the Multinational Force in Lebanon.

June 1984. P.L. 98-525 - The Defense Authorization Act. The Congress capped the end strength level of United States forces assigned to permanent duty in European NATO countries at 324,400.

July 2000. P.L. 106-246 - Military Construction Appropriations and For Other Purposes - Personnel Ceiling in Colombia: "no funds appropriated or otherwise made available by this or any other Act (including funds described in subsection (c)) may be available for-- (A) the assignment of any United States military personnel for temporary or permanent duty in Colombia in connection with support of Plan Colombia if that assignment would cause the number of United States military personnel so assigned in Colombia to exceed 500; or (B) the employment of any United States individual civilian retained as a contractor in Colombia if that employment would cause the total number of United States individual civilian contractors employed in Colombia in support of Plan Colombia who are funded by Federal funds to exceed 300."

Funding Restrictions Enacted into Law

December 1970. P.L. 91-652 - Supplemental Foreign Assistance Law. The Church-Cooper amendment prohibited the use of any funds for the introduction of U.S. troops to Cambodia or provide military advisors to Cambodian forces.

June 1973. P.L. 93-50 - Supplemental Foreign Assistance, "None of the Funds herein appropriated under this act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States forces, and after August 15, 1974, no other funds heretofore appropriated under any other act may be expended for such purposes."

December 1982. P.L. 98-215 - Defense Appropriations Act. In what became known as the Boland Amendment, Congress prohibited covert military assistance for Nicaragua.

November 1993. P.L. 103-139. The Congress limited the use of funding in Somalia for operations of U.S. military personnel only until March 31, 1994, permitting expenditure of funds for the mission thereafter only if the president sought and Congress provided specific authorization.

September 1994. P.L. 103-335. The Congress declared "no funds provided in this Act are available for United States military participation to continue Operations Restore Hope in or around Rwanda after October 7, 1994, except for any action that is necessary to protect the lives of United States citizens."

June 1998. P.L. 105-85 - Defense Authorization Bill. The Congress prohibited funding for Bosnia "after June 30, 1998, unless the President, not later than May 15, 1998, and after consultation with the bipartisan leadership of the two Houses of Congress, transmits to Congress a certification-- (1) that the continued presence of United States ground combat forces, after June 30, 1998, in the Republic of Bosnia and Herzegovina is required in order to meet the national security interests of the United States; and (2) that after June 30, 1998, it will remain United States policy that United States ground forces will not serve as, or be used as, civil police in the Republic of Bosnia and Herzegovina."

If you're keeping score at home, mark that as Center for American Progress 1, right-wing ass-clowns 0.

Tagged as: congress, iraq, escalation

Joshua Holland is a staff writer at Alternet and a regular contributor to The Gadflyer.