War for the government

Is there a point at which a war becomes so unpopular, and a president’s mismanagement of it so egregious, that the Congress is within its rights to strip him of his command, regardless of the Constitutional issues? Today, Yoo and Ackerman discuss the imbalance of power between the president and Congress. Previously, they debated the presidential practice of unilaterally going to war, the hypocrisy of the left and the right on the issue of war powers, the ongoing use-of-force resolution and the war powers language of the constitution.

Remember Andrew Johnson
By Bruce Ackerman

John,

Let’s move beyond the founding and consider the historical lessons of Reconstruction.

President Andrew Johnson’s abuse of his powers as commander in chief provoked his impeachment. When Lincoln was shot, the defeated South was under military occupation, and it was up to Johnson to take command. But he didn’t use this power wisely. He refused to cooperate with Congress in formulating a sensible plan for Reconstruction. When Congress passed a statute over his veto, he used his military commanders in the South to sabotage the congressional effort.

Congress responded by stripping Johnson of his powers as commander in chief. Overriding his veto, it required Johnson to issue all orders through General Ulysses S. Grant and barred him from firing Grant without the consent of the Senate. At the same time, it also prohibited the president from firing Secretary of War Stanton without Senate approval.

Johnson was defiant. He fired Stanton and denied that Congress had the authority to strip him of his powers as commander in chief. Johnson was absolutely right on the law. But that didn’t stop the House from impeaching him. While he managed to escape conviction by a single vote in the Senate, his disastrous confrontation gravely weakened the presidency for a generation. (For a blow-by-blow account, take a look at the second volume of my We the People series.)

When today’s historians look back to this episode, they do not give Johnson high marks for his heroic defense of his powers as commander in chief. They regularly award Johnson last place in their rankings. His defiance of Congress has earned him the reputation as the worst president in American history.

There is a lesson here. Even if you were right in converting President Bush into the legal equivalent of King George III, the president would be terribly unwise to press his powers to their furthest limits. Instead of pushing extremist positions, he should be reaching out to Congress and recognize that the voters are demanding a clear exit strategy in Iraq. If he acts sensibly, there is every reason to believe that Congress will reciprocate.

For example, Congressman David Wu (D. Oregon) and I have proposed a “Half-Trillion Dollar Solution” to the present standoff over Iraqi war appropriations. By conservative estimates, we have already spent about $350 billion on the war. The present bill funds the conflict through the end of this fiscal year, requiring the president to come back again with another request for 2008. At the current rate, President Bush will have spent more than $500 billion before leaving the White House.

Given these budget-busting sums, Congressman Wu and I suggest that Congress should attach a rider to the current appropriation bill which sets an absolute ceiling of half a trillion dollars on total war spending. President Bush would get his current funding, but he would have to accept a ceiling that would require departure from Iraq sometime in 2008.

This proposal achieves this objective by a “delayed funding cut-off” of a kind that you agree is perfectly constitutional. This means that we could continue our debate on the big constitutional issues without providing ammunition for an escalating war between the branches.

Nobody will really win from two more years of conflict. Despite the precedent of Andrew Johnson, I oppose any effort at impeachment—this is a luxury we can’t afford when fighting two wars overseas. Nevertheless, the battle between the president and Congress will be furious. Even if overwhelming political pressure doesn’t force the president to capitulate, his successor may well inherit a badly damaged office.

As Andrew Johnson’s example suggests, Americans want something more from a president than the aggressive defense of his powers as commander in chief. We want—dare I say it?—wisdom.

A wise president would choose the path of collaboration, not confrontation, and prepare the way for a return to true bipartisanship in foreign policy in the years ahead.

Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of “Before the Next Attack: Protecting Civil Liberties in an Age of Terrorism” (Yale, 2006).

Do they dare to say ‘impeach’?
By John Yoo

Bruce,

We are still waiting to see whether the latest strategy in Iraq will work, but there is no doubt that the postwar reconstruction is edging toward disaster.

For what it is worth, I argued in the Los Angeles Times in 2005 that the United States should divide Iraq, like Gaul, into three parts, and then leave. (For fans of the Rome miniseries, Julius Caesar began his Commentary on the Gallic Wars with “Gallia est omnis divisa in partes tres”). We are spending blood and treasure to preserve a country that does not make sense as a state and to keep together people who do not wish to live together. Keeping Iraq together runs counter to modern history’s wave of decentralization. Today there are 193 nations; at the end of World War II there were 74. All of this is made possible thanks to American guarantees of international peace and free trade, which reduce the need for large, multi-ethnic nations.

But it is premature, to say the least, for armchair generals (ourselves included) to enter a verdict on General David Petraeus’ plans to secure Baghdad and enable a political settlement in Iraq. Claims that President Bush’s leadership of our foreign policy is so unpopular or mismanaged that his command ought to be taken away are utterly far-fetched. Uncertainty, unpredictability, and setbacks are part of the nature of war. As soldiers often say, battle plans never survive first contact with the enemy.

We do not always win our wars. We have suffered terrible losses in battle. We have been led at times by incompetent generals and presidents. In the War of 1812, the United States took on the world’s naval superpower, our capital was captured and burned, and our invasion of Canada was easily repulsed. (Yes, it is true: For some obscure reason we wanted to annex Canada.) Many forget today the losses and mistakes, beginning with Pearl Harbor and the fall of the Philippines, that occurred during World War II. Vietnam, of course, remains a more recent example of American military failure, although the reasons are still hotly debated.

In all of these crises, a President has never lost his command for the single reason that Congress cannot interfere with the president’s control over the generals and the armed forces. The Constitution gives the president the authority to direct the military and to fire any inferior officers who refuse to follow his policies. Allowing Congress to strip presidents of their military powers would set up Congress as their equal in command. You could not do more to ruin the power and discipline of our world-class armed forces than to give it two masters rather than one.

If you want to remove the President’s command, you have to remove the President. There is only one way for Congress to do it—impeachment. On this, Bruce, you and I agree (and I provide more details of this argument in my 2005 book, The Powers of War and Peace).

During the Clinton impeachment circus, some argued that this allowed Congress to remove the President for any violation of federal law, like perjury. Clinton’s defenders responded that Congress could only impeach for a serious crime that involved his performance in office. Impeachment is not just limited to crimes, but includes serious policy mistakes in affairs of state. When the Constitution was written, impeachment was understood to allow the removal of executive officials for failed war policies.

We all want the President and Congress to agree on the conduct of war. In the best of worlds we would never have to contemplate funding cut-offs, ceilings (I think your proposal is perfectly constitutional), or impeachment. Wartime is not the best time to have crippling breakdowns in government, as the Andrew Johnson and Vietnam examples show. Despite its setbacks and mistakes, the Iraq war continues to receive bipartisan support. We should let politics, not the laws, determine whether that cooperation will continue.

John Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003, where he worked on constitutional issues involving war, and is the author of “War by Other Means” (2006).