By Michael Doyle
McClatchy Newspapers
(MCT)
WASHINGTON - Sen. Dianne Feinstein wants Congress to undeclare the war in Iraq.
Other leading Democrats agree, following a lead the Californian took with the introduction of a bill a week ago. But as lawmakers craft their latest Iraq strategy, they could be entering either a constitutional minefield or an exercise in futility.
"I have never, ever heard of a declaration of war being taken away," Ruth Wedgwood, a Johns Hopkins University international law professor, said Friday. "It's certainly constitutionally ambitious, if not outrageous."
Congress has declared wars, such as World War I. Congress has adopted peace treaties, as happened after World War II. Congress has authorized force, twice against Iraq, and Congress has cut off war funding, effectively ending the Vietnam conflict.
But removing a president's war-making authority while it's still being used is something different. It has happened, once, but it accomplished little.
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"If the issue came before the Supreme Court, my guess is the court would hold that Congress has the power to repeal the use of force just as it can repeal any other statute," said University of Virginia law professor Robert Turner. "However ... any such effort would have to be submitted to the president and could be vetoed."
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The one time Congress did withdraw war authorization, the results were unimpressive.
In June 1970 Congress repealed the 1964 Gulf of Tonkin Resolution, which had authorized the Vietnam war. The Senate seemed to speak emphatically. By an 81-10 vote, senators first added the Gulf of Tonkin repeal to another bill. Then, by a 57-5 vote several weeks later, the Senate passed a separate repeal resolution.
President Nixon signed the bill that included the Gulf of Tonkin repeal. He also kept the Vietnam war going, using what he called inherent presidential powers.
moreWanted: 16 Republican Senators to de-authorized the war! If 16 Repubs stepped up to the plate and the measure is passed, the Supreme Court would likely get involved.
Unlike the resolution authorizing the use of U.S. military force in Iraq, the Tonkin Gulf Resolution contained language allowing Congress to repeal it at any time. Unsuccessful congressional efforts to repeal the Tonkin Gulf Resolution began as early as 1966, just two "quagmire-ish" years after its passage. Finally in January of 1971, Congress succeeded in passing a measure repealing the Tonkin Gulf Resolution.
While he did not veto it, President Richard M. Nixon refused to honor the measure and continued to wage the war, claiming presidential authority to do so as commander in chief of the military. But, another far more effective act of Congress would ultimately end the Vietnam War by closing the federal purse strings.
linkAfter Congress repealed the Golf of Tonkin Resolution, Nixon continued the war for two and a half years. McGovern tried to get Congress to do the courageous thing.
Furthermore, in June 1970 the Gulf of Tonkin Resolution was repealed by the Senate. Passed in 1964, it was the closest Congress came to a declaration of war. It followed non-existent and possibly fabricated North Vietnamese patrol-boat attacks on the U.S.S. Maddox and U.S.S. C. Turner Joy in the Gulf of Tonkin on August 4. While perhaps moot by 1970 due to Vietnamization, it was, nevertheless, a dramatic withdrawal of Senate support for the Vietnam War. Senator Joe Biden, Democrat of Delaware, and chair of the Senate Foreign Relations Committee, has proposed a similar repeal of the Senate’s “Authorization for Use of Military Force Against Iraq Resolution” of October 2002.
Nixon pursued his “Peace With Honor” with strategic bombing and “Operation Linebackers” with their horrific Vietnamese civilian casualties for another two and a half years. It seems unlikely that a similar Senate or House of Representatives repeal of their authorizations to use force, would materially alter the neo-conservative-messianic-imperialist vision that continues to hold sway at the Executive Branch. It would not succeed in coercing the president to terminate the conflict and withdraw American occupation forces from Iraq.
The most heroic effort by Congress to stop the Vietnam War was the McGovern-Hatfield Amendment. Named after Senator George McGovern, Democrat of South Dakota, and Senator Mark Hatfield, Republican of Oregon, it was another post-Cambodian “surge” response. It was introduced in 1970 and would have required Nixon to withdraw all American forces from Vietnam by the end of 1971. It would have reserved funding only for the safe and orderly withdrawal of American forces. While the amendment could not garner a majority in either house, it did receive the support of some thirty-nine Senators. When it was introduced on September 1, 1970, the future presidential candidate George McGovern said:
It does not take any courage at all for a congressman, or a senator, or a president to wrap himself in the flag and say we are staying in Vietnam, because it is not our blood that is being shed. But we are responsible for those young men and their lives and their hopes. And if we do not end this damnable war those young men will some day curse us for our pitiful willingness to let the Executive carry the burden that the Constitution places on us.
It would appear that if the 110th Congress wishes to end the carnage and the crime that is Iraq, it would have to cease funding future military operations. This would take political courage because of the never ending myth that supporting the war is required in order to support the troops. Of course, military conflicts are not fought for the troops but for alleged war aims that purportedly serve the national interest. Whether those war aims are just or not, wars are never fought to benefit the combatants, who suffer and sacrifice greatly in a conflict, but for some other constituency.
link Gareth Porter
January 16, 2007
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The Democrats have gravitated toward a nonbinding resolution that would do nothing to force George W. Bush to bring the troops home. The Democratic haziness about the options available to end the U.S. occupation of Iraq is exemplified by presidential candidate Joe Biden’s comment last week that Congress can do nothing to stop the war, because, “It's unconstitutional to say, you can go, but we're going to micromanage.”
The Democrats’ real problem appears to be political rather than constitutional: They have convinced themselves that they cannot cut off funds without being accused of failing to keep faith with U.S. troops in Iraq.
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Democrats have either forgotten the precedent for such legislation during the Vietnam War or have learned the wrong lesson from that precedent. An amendment offered by Democratic Senator George McGovern and Republican Mark Hatfield on September 1, 1970 would have cut off all funding for any U.S. combat activities in Vietnam after December 31, 1971—15 months after the date of the vote in the Senate. The amendment was defeated 55 to 39, and a House companion bill was defeated 254 to 158.
The Republican attack on the McGovern-Hatfield amendment and its sponsors was even more vicious than the Bush-Rove accusation of “cut and run” against the 2006 Democratic proposals for a timetable for withdrawal. But no one suggested during the debates that the amendment was unconstitutional, despite the fact that Congress had given blanket approval in the Gulf of Tonkin resolution to “all necessary steps, including the use of armed force” to assist South Vietnam.
The fact that Congressional opponents of the war could not muster sufficient votes to pass those amendments has led some observers to conclude that such a legislative timetable for withdrawal should not be tried today. That view ignores the enormous differences between the situation faced by Congressional doves in 1970-72 and their present-day counterparts. Consider the following contrasts:
The Trend in Military Involvement. By the time McGovern-Hatfield was brought to a vote in September 1970, Nixon had already convinced most Americans that he was getting out of Vietnam, even if it was only to replace U.S. troops with Vietnamese. The number of U.S. troops in Vietnam had already fallen from 550,000 when Nixon took office to 225,000, and the withdrawal would have been completed in two more years at the monthly rate then being implemented.
Bush, on the other hand, has not only resisted the broad bipartisan recommendation of the Baker-Hamilton report to begin a military disengagement, but has proceeded to announce a plan for increasing U.S. troop strength. And he has done that in the face of advice against doing so by the U.S. military commanders who had been in Iraq since 2005.
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The McGovern-Hatfield legislative approach to ending the U.S. war in Iraq—setting date for complete withdrawal after which no more funds can be used to carry on the war—is the weapon on the wall for American democracy. The American people are waiting for Congress to use it. And as George McGovern himself observed before the Progressive Caucus last week, if George Bush refused to carry out its provisions, that would clearly constitute an impeachable offense.
linkRelevant from Senator Feingold:
The Constitution gives Congress the explicit power “
declare War,” “o raise and support Armies,” “o provide and maintain a Navy,” and “o make Rules for the Government and Regulation of the land and naval Forces.” In addition, under Article I, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” These are direct quotes from the Constitution of the United States. Yet to hear some in the Administration talk, it is as if these provisions were written in invisible ink. They were not. These powers are a clear and direct statement from the founders of our republic that Congress has authority to declare, to define, and ultimately, to end a war.
Our founders wisely kept the power to fund a war separate from the power to conduct a war. In their brilliant design of our system of government, Congress got the power of the purse, and the President got the power of the sword. As James Madison wrote, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded.”
linkSenator Leahy:
In a recent column in The New York Times, Adam Cohen recalled the observation of James Madison that “the Executive is the branch of power most interested in war, and most prone to it” and that it was to counteract this danger that the Constitution “with studied care, vested the question of war in the Legislature.” Mr. Cohen goes on to recall the case of the Flying Fish in 1799, the Steel Seizure case in 1952, and the Hamdan case in 2006, all of which circumscribed presidential action. He recalls the capping of the number of American military personnel in South Vietnam in the Foreign Assistance Act of 1974 and the provisions of the Lebanon Emergency Assistance Act of 1983. He concludes: “The Constitution’s text, Supreme Court cases and history show, however, that Congress can instead pass laws that set the terms of military engagement.”
linkThe war in iraq is going to end one of three ways: 1) Vietnam-like
pandemonium that makes withdrawal inevitable. 2) Congressional courage to set a deadline and cut funding 3) hope the next president adheres to a deadline as opposed to an open-ended withdrawal.
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