I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, August 25, 2006

Who decides what the U.S. will do about Iraq and Iran?

A somewhat overlooked part of President Bush's Press Conference this week was his comments strongly suggesting that he believes only he -- and not the Congress -- has the power to decide when the war in Iraq ends, as well as whether we will begin a new war with Iran. All of the debates we are having about what to do about Iran and Iraq are meaningless if the President believes (as he seems to) that all power to decide these matters rests with him.

As Atrios noted the other day, the administration's intentions regarding a war with Iran are unclear. The most likely reason that it's unclear is because the administration is still undecided about whether to start that war, most likely because the more extremist warmongers in the administration have yet to convince those who need to be convinced of the war's necessity (at least its pre-November necessity). No reasonable person can doubt that political considerations will play a significant role in all of this. Will forcing a mere debate over military action against Iran be enough for Karl Rove to create the warrior-appeaser dichotomy which is all he knows, or will more be required, i.e., an all-out military conflict in order to generate war-based support for the President and his party?

But whatever the administration's plans are, there is, as I have written about before, a very real question as to whether the administration believes it can attack Iran on its own, i.e., without the approval of the American people through the Congress. The theories of executive power embraced by the administration leave little doubt that they believe, at least in theory, that decisions about whether to go to war against Iran, or to end the war in Iraq, are for the President alone to make, and that Congressional authorization is unecessary to attack Iran, and for the same reason, Congress cannot end the war in Iraq.

When speaking about Iraq at his Press Conference this week, the President seemed to make rather clear that he believes Congress has no role to play in decisions concerning when wars begin and end:

And any sign that says we're going to leave before the job is done simply emboldens terrorists and creates a certain amount of doubt for people so they won't take the risk necessary to help a civil society evolve in the country.

This is a campaign -- I'm sure they're watching the campaign carefully. There are a lot of good, decent people saying, get out now; vote for me, I will do everything I can to, I guess, cut off money is what they'll try to do to get our troops out. It's a big mistake. It would be wrong, in my judgment, for us to leave before the mission is complete in Iraq.

That is very deliberate wording; he went out of his way to point out that the only thing Congress could do to "try" to compel a withdrawal of troops is to cut off funding. The President clearly has been involved in discussions where it was told to him that he does not need Congressional authorization to fight wars and that Congress cannot force him to end a war by voting, for instance, to revoke the 2002 Authorization to Use Military Force in Iraq. Clearly, the President believes he can stay in Iraq even if such authorization is revoked.

That the President believes Congress is powerless with regard to war matters seems independently clear from the President's emphatic declaration that "We're not leaving, so long as I'm the President." Senators have introduced and debated legislation to compel troop withdrawals from Iraq, but the President quite clearly believes that such debates are meaningless because only he -- not the American people's representatives -- decides if and when troops are to be withdrawn from Iraq.

The significance of these views for the Iran situation is obvious. It seems quite clear that the President believes he has the power to begin a war with Iran without Congressional approval, or even in the face of Congressional opposition to such a war. That view is plainly contrary to core principles of our system of government. In Federalist 69, Hamilton sought to assuage fears that creating a President would lead to monarchical rule, and to do so, he contrasted the "inferior" powers of the President with those of the British King, particularly in the area of war-making (last emphasis added):

The most material points of difference are these: -- First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.

Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

How much clearer could that be? The President does not have the power to simply deploy armies at will. He merely commands armies which Congress deploys into battle. Congress decides when and if wars will be fought; the President merely decides as the "first General" how they will be fought. As John Jay explained in Federalist 4, requiring that the American people approve of wars (through their Congress) is essential for avoiding unnecessary wars, because Presidents will start wars that are unnecessary i.e., for their own benefit, if they can do so without the authorization of Congress:

It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.

That is why it was critical to the Founders that wars not be waged unless those wars have the support of the people through the Congress. The Founders recognized the danger of vesting power to start wars with the President -- a power which President Bush clearly believes he has. As Jay made clear, allowing Presidents the power to decide when wars begin and end would ensure that America wages wars in order to aggrandize the personal interests of the President rather than to serve the national interest.

It's nice that so many people seem interested in debating whether military confrontation with Iran is prudent and/or whether we should withdraw from Iraq, but there is a real question as to whether the President thinks the outcome of those debates matters. Indeed, he has made clear that he believes only he can decide when wars begin and end. Finding out from the administration whether they believe they can wage war on Iran without Congressional approval, and/or whether Congress has the power to compel the end of the war in Iraq, is something that probably ought to be a high priority for our nation's journalists. The American people should know whether the President believes they have any role in deciding matters of war and peace.

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