Iraq and the wobbly Congress

Today, Yoo and Ackerman discuss the ongoing use-of-force resolution. Yesterday, they interpreted the U.S. Constitution for answers. Later this week, they’ll debate the hypocrisy of the left and the right on this issue, the questionable relevance of “letters of marque and reprisal” in the 21st century, and the possibility that there may be more important issues here than constitutional language.

Weak, loose and decentralized is no way to run a war
John Yoo

Bruce,

Congress bears as full a responsibility for the Iraq war as President Bush.

It could end American involvement in Iraq tomorrow, simply by doing nothing. No risk of presidential veto is necessary; it could simply decline to enact the funds needed to keep the war going. But even a Democratic majority that campaigned against the war will not take such a controversial step. Congress’ allergic reaction to important decisions shows why the legislature cannot be entrusted with wartime tactics and strategy.

Congress’ support for the war is so clear even a caveman could get it. In winter 2002, bipartisan majorities of both the House and Senate authorized President Bush “to use the Armed Forces of the United States as he determines to be necessary and appropriate” to defend the national security “against the continuing threat posed by Iraq.” It also authorized the president to use force to enforce United Nations Security Council resolutions involving Iraq.

Congress has continued to fund the war without fail. The Senate has confirmed the generals nominated by President Bush to lead it, most recently General David Petraeus, who is in charge of the Baghdad surge. Some members of Congress, like Sens. Joe Lieberman (I-Conn.) and John McCain (R-Ariz.), have demanded more troops and a chance for victory. Others, like Rep. John Murtha (D-Penn.) want fewer soldiers and a quick pullout.

All of this shows why the Constitution vests in the President the authority to manage war. Congress is too large and unwieldy to take the swift and decisive action required in wartime. Even when it has access to the same intelligence as the executive branch, as with Iraq, Congress’ loose, decentralized structure would paralyze American policy while foreign threats grow.

Congress has no political incentive to mount and see through its own wartime policy. Congressmen interested in keeping their seats at the next election do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of the electorate no matter what they do. Members of Congress want the President to take the political risks and to be held accountable if failure results.

Congress’ track record when it has opposed presidential leadership has not been a happy one. Perhaps the most telling example was the Senate’s rejection of the Treaty of Versailles at the end of World War I. Congress’s isolationist urge kept the United States out of Europe at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war, Congress passed Neutrality Acts designed to keep the United States out of the war. FDR arguably violated those laws to help the Allies and draw the nation into war against the Axis. While you may worry about a President’s foreign adventurism, the real threat to our national security may come from inaction and isolationism.

Many point to the Vietnam War as an example of the faults of the “imperial presidency.” But Vietnam also ushered in a period of congressional dominance that witnessed American setbacks in the Cold War, and the passage of the ineffectual War Powers Resolution. Congress passed it over President Nixon’s veto, and no President, Republican or Democrat, has ever accepted the constitutionality of its 60-day limit on the use of troops abroad. Even Congress has never tried to enforce it.

Even if we could agree on Congress’ constitutional powers to end the Iraq war, Congress will not use them forcefully. It does not want to be responsible for a rerun of the Vietnam war’s aftermath. It has no serious alternatives to deal with the insurgency and the threat of regional war. No meaningful proposal to block Bush’s Iraq strategy is likely to emerge from Congress until the war’s outcome is already clear.

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).

Say no to King George
Bruce Ackerman

Dear John,

In yesterday’s exchange, you claimed that Alexander Hamilton endorsed your views. Nothing could be further from the truth. Hamilton was a great friend of executive power, but he knew where to draw the line.

You fail to mention a key passage in Federalist 69 where Hamilton emphasizes the president’s limited powers as commander-in-chief:

So Hamilton doesn’t say what you say he says—but precisely the opposite. This is a surprising mistake for a constitutional scholar to make. Your effort to recruit Hamilton only demonstrates how far your position diverges from the original understanding.

The Founding generation would have rejected the Constitution if it supposed that the president could exercise the war-making powers of a British king. Yet you say that we have reached a point in American history where President George Bush II possesses the same powers as King George III. He can make war whenever he wants, and however he wants, and if Congress doesn’t like what he is doing, its sole remedy is the one that was available to the eighteenth-century House of Commons: a funds cut-off.

This is a radical breach with original understanding, and it should suffice to condemn your position in the eyes of originalists like Justices Antonin Scalia and Clarence Thomas. President Bush has declared these Justices role models for judicial appointments. If he were true to his originalist profession of faith, he would concede the constitutionality of Congress’ present course.

But it’s one thing to say you are an originalist—another, to act like one (as I’ve learned in reading the opinions of Scalia and Thomas over the years). We will see whether the president practices what he preaches in his message to Congress vetoing its timetable for withdrawal from Iraq—or whether he embraces your anti-originalist line.

I take a middle ground. The commitments made at the Founding should be our guide unless they have been self-consciously revised by later generations of Americans—as, for example, happened with the repudiation of slavery after the civil war. But despite your claims, the American people aren’t prepared to revise the Founding commitment to checks-and-balances when it comes to major wars—at least not yet.

Actions speak louder than words. In mounting their wars in Iraq, President Bush and his father claimed the authority to act unilaterally. They did not go to Congress out of love. They were forced by public opinion to gain Congressional consent—the second time around, under false pretences.

You say that Congress lacks the backbone to insist upon a timetable for withdrawal now that we have learned the truth about weapons of mass destruction and the absence of any linkage between Saddam Hussein, Al Qaeda, and 9/11. You may be right.

But if Congress fails to make good on its mandate from the voters, that’s because it lacks political will, not constitutional authority.

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).