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.

Tuesday, January 30, 2007

Republicans and Congress' war powers -- then and now

Russ Feingold today is chairing a Committee hearing in order to demonstrate that Congress has the Constitutional authority to compel the President to withdraw troops from Iraq, a power that is not merely confined to cutting off appropriations. Sen. Feingold is holding the hearing in the face of claims -- mostly from Congressional Republicans and their supporters -- that only the President has the power to make determinations about troop deployments, and Congress' only power is one of appropriations.

Back in September, when Chris Wallace falsely accused Bill Clinton of emboldening the Terrorists by prematurely cutting-and-running from Somalia (a favorite right-wing meme), it was documented here (as Clinton himself pointed out to Wallace) that it was actually Republican Senators who forced Clinton to withdraw troops by imposing troop withdrawal deadlines on him and threatening further restrictions on his ability to keep troops there. But if one goes back and reviews that debate, it is quite striking that Republicans back then certainly did not seem to believe that Congress lacked the ability to restrict the President's power to deploy troops. They argued exactly the opposite - that they had that power -- and they used it to force Clinton out of Somalia (all excerpts are available here, by searching "Somalia):

John McCain's stirring pro-withdrawal Senate speech about why it was urgent that the Senate force Clinton to leave Somalia is particularly interesting in light of all of his completely contrary claims today about Iraq:

Sen. John McCain - October 19, 1993

There is no reason for the United States of America to remain in Somalia. The American people want them home, I believe the majority of Congress wants them home, and to set an artificial date of March 31 or even February 1, in my view, is not acceptable. The criteria should be to bring them home as rapidly and safely as possible, an evolution which I think could be completed in a matter of weeks.

Our continued military presence in Somalia allows another situation to arise which could then lead to the wounding, killing or capture of American fighting men and women. We should do all in our power to avoid that.

I listened carefully to the President's remarks at a news conference that he held earlier today. I heard nothing in his discussion of the issue that would persuade me that further U.S. military involvement in the area is necessary. In fact, his remarks have persuaded me more profoundly that we should leave and leave soon.

Dates certain, Mr. President, are not the criteria here. What is the criteria and what should be the criteria is our immediate, orderly withdrawal from Somalia. And if we do not do that and other Americans die, other Americans are wounded, other Americans are captured because we stay too long--longer than necessary--then I would say that the responsibilities for that lie with the Congress of the United States who did not exercise their authority under the Constitution of the United States and mandate that they be brought home quickly and safely as possible. . . .

I know that this debate is going to go on this afternoon and I have a lot more to say, but the argument that somehow the United States would suffer a loss to our prestige and our viability, as far as the No. 1 superpower in the world, I think is baloney. The fact is, we won the cold war. The fact is, we won the Persian Gulf conflict. And the fact is that the United States is still the only major world superpower.

I can tell you what will erode our prestige. I can tell you what will hurt our viability as the world's superpower, and that is if we enmesh ourselves in a drawn-out situation which entails the loss of American lives, more debacles like the one we saw with the failed mission to capture Aideed's lieutenants, using American forces, and that then will be what hurts our prestige.

We suffered a terrible tragedy in Beirut, Mr. President; 240 young marines lost their lives, but we got out. Now is the time for us to get out of Somalia as rapidly and as promptly and as safely as possible.

I, along with many others, will have an amendment that says exactly that. It does not give any date certain. It does not say anything about any other missions that the United States may need or feels it needs to carry out. It will say that we should get out as rapidly and orderly as possible.

Sen Strom Thurmond (R-SC) - October 5, 1993

It is past time for the Congress to come to grips with this sorry spectacle and force the administration to find a way out of the quagmire--before Somalia becomes the pattern for future United States missions with the United Nations.

Sen. Phil Gramm (R-TX), October 7

The President's decision to extend our presence for 6 more months is totally unacceptable to me and totally unacceptable, I believe, to the Congress.

If the people of Texas--who are calling my phones every moment, who are sending me letters and telegrams by the hour--are representative of the will of the American people, the American people do not believe that we should allow Americans to be targets in Somalia for 6 more months. I cannot see anything that we would achieve in 6 more months in Somalia

Sen. Dirk Kempthorne (R-ID), October 5

Mr. President, it is time for our troops to come home. I would give this directive to the military leadership and that is that they are to use whatever means they determine necessary to secure the release of American POW's in Somalia, because to leave them behind would be to issue adeath sentence to those Americans, and that is absolutely unacceptable.

But, Mr. President, the longer we leave United States troops in Somalia under U.N. command, the longer we leave United States troops in unjustified danger. I owe my allegiance to the United States, not to the United Nations. It is time for the Senate of the United States to get on with the debate, to get on with the vote, and to get the American troops home.

Sen. Slade Gorton, October 6,1993 (R-WA)

We are in a disaster, Mr. President. If we had retreated earlier, we would have left fewer dead Americans behind. It is time to retreat now and leave no more dead Americans behind and to learn the lesson that American power should be used only where we have a clear stake in a conflict, a clear goal to be achieved, the clear means to reach that goal, and the potential of clear support on the part of the American people.

As none of those exist in Somalia today, it is time to leave. And for this body, it is time to debate this issue and not the nomination of an Assistant Attorney General.

Sen. Jesse Helms - October 6, 1993 (R-NC)

Mr. President, the United States has no constitutional authority, as I see it, to sacrifice U.S. soldiers to Boutros-Ghali's vision of multilateral peacemaking. Again, I share the view of Senator Byrd that the time to get out is now. We can take care of that criminal warlord over there. We have the means to do it and the capacity to do it. But it ought to be done by the United Nations. I do not want to play in any more U.N. games. I do not want any more of our people under the thumb of any U.N. commander--none.

As a matter of fact, while we are at it, it is high time we reviewed the War Powers Act, which, in the judgment of this Senator, should never have been passed in the first place. The sole constitutional authority to declare war rests, according to our Founding Fathers, right here in the Congress of the United States, and not on Pennsylvania Avenue. I voted against the War Powers Act. If it were to come up again today, I would vote against it. I have never regretted my opposition to it.

Sen. Alan Simpson (R-WY) - October 6

Let me close by saying I am willing to support our President, our Commander in Chief, if we have a policy either for decisive, potent, and powerful military action, without quarter, without reservation--or obviously for us instead to withdraw from Somalia.

What I cannot continue to support is the continuing endangerment of Americans in the service of a policy that remains absolutely mysterious and totally muddled.

Sen. Judd Gregg (R-NH) - October 4

And, thus, I hope that we, as a Senate, will proceed to discuss the issue of Somalia in the near future, in the immediate future, before any more American lives are lost; and that we shall put into definition and some focus what is our purpose there and, most importantly, how we intend to disengage or, if it is our decision, how we intend to engage pursuant to the laws which we, as a nation, have as a constitutional democracy.

In fact, one of the very few politicians who has been consistent in his views on this question is -- unsurprisingly -- Russ Feingold, who argued then what he argues now: namely, that the Constitution vests war-making power in the Congress and that Congress can (and, in both cases, should) restrict the President's use of military force:

Sen. Russ Feingold (D-WI) - October 5

In February, I declined to cosponsor the Senate resolution which was introduced and passed in 1 day because I thought the resolution was too vague in terms of the United States mission and duration of our commitment in Somalia. It was also because of the War Powers Act, because of a lack of congressional approval for this specific mission, that I, with six of my colleagues, voted against that resolution in the DOD bill. It turns out, I believe, that the original resolution, which mandated a withdrawal of U.S. troops within 30 days unless continuation was authorized by a specific act of Congress, was probably the correct position.

I join several of my colleagues who have spoken today to say that we should leave Somalia now: we should not increase the American troop level or increase our involvement. Our continued presence risks not only more American lives but also the possibility that the worldwide broadcasting of the mistreatment of U.S. prisoners will so inflame our national pride that it will be increasingly difficult to leave.

When Bill Clinton was President, most of the country's leading Republicans did not seem to have any problem at all with Congressional "interference" in the President's decisions to deploy troops (really to maintain troop deployments, since President Bush 41 first deployed in Somalia). There wasn't any talk back then (at least from them) about the burden of "535 Commanders-in-Chief" or "Congressional incursions" into the President's constitutional warmaking authority. They debated restrictions that ought to be legislatively imposed on President Clinton's military deployments and then imposed them.

And Sen. McCain in particular made arguments in favor of Congressionally-mandated withdraw that are patently applicable to Iraq today. And he specifically argued with regard to forcible troop withdrawal that "responsibilities for that lie with the Congress of the United States." The Constitution hasn't changed since 1993, so I wonder what has prompted such a fundamental shift in Republican views on the proper role of Congressional war powers.

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