Dwight Stephens

What is the point of a non-binding Senate resolution “rebuking” the Administration for what is, in effect, its latest battle plan for the war in Iraq. Both President Bush and Vice-president Cheney have made clear that, in their view, the President is the commander in chief and the President says 21,000 more troops are going. Commenting on the reality of the situation, Senator Kennedy reportedly commented, in effect, that the troops will be on the ground in Baghdad before Congress can act and then what is Congress going to do? Not supply them with the equipment they need?

While some in Congress are starting to take offense with the Administration’s cavalier and dismissive attitude toward Congress, the Senate for its part seems mostly paralyzed as to what Congress’ role should be concerning the war and, even more perplexing, exactly what it should do. Most probably agree that the November elections sent a message to Congress that the country should change course in Iraq, but, as always, the devil is in the details. One thing is clear, if ever there was a time in Congress for its members to lead, follow or get out of the way, now is it. Whether you agree or disagree with their views, at least two Senators are taking a stand.

Addressing the obvious concerning the proposed Warner-Levin resolution to condemn the President’s new Iraq strategy, in an adaptation ofhis remarks to the Senate published in the New York Post, Senator Lieberman stated: “This resolution is not about taking responsibility. It is the opposite–a resolution of irresolution. If you believe that Gen. David Petraeus and his new strategy have a reasonable chance of success, then resolve to support him and his troops through the difficult days ahead. If you believe that this new strategy is flawed or that our cause is hopeless, then vote to stop it. Vote to cut off funds. Vote for a binding timeline for U.S. withdrawal. Have the courage of your convictions to accept the consequences of your convictions. That would be a resolution.”

Those behind the resolution are not leading, and they are not following. They are getting in the way–unable to take a stand. As aptly described by Senator Lieberman, “[this] non-biniding measure before us . . . is an accumulation of ambiguities and inconsistencies: at once for the war but also against the war; pledging support to the troops in the field but also washing its hands of what they are doing.” Senator Lieberman supports the President’s new Iraq plan. There is at least one other Senator, however, who does not.

The President’s authority to commit additional troops to Iraq and to continue to use U.S. troops in Iraq is the joint Congressional resolution in October, 2002 to “authorize the use of United States Forces against Iraq”–basically a blank check, but not necessarily drawn on an unlimited bank account. The authorization carried by a 77 to 23 vote in the Senate. Among the nays was Senator Feingold of Wisconsin–the other Senator voicing the courage of his convictions.

As conceived by the founding fathers, the President is the commander-in-chief, Congress has the “power of the purse,” and the Supreme Court is the final arbiter of the proper scope and excercise of each co-equal branch’s constitutional power. With respect to the Executive, James Madison, who is being widely quoted on this subject these days, wrote”[t]hose 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.” As Madison warned,”War is in fact the true nurse of executive aggrandizement.” “In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace.”

Senator Feingold recently explained, “I will soon be introducing legislation to use the power of the purse to end what is clearly one of the greatest mistakes in the history of our nation’s foreign policy.” As Senator Feingold wrote in a Huffington Post column just before introducing the legislation:

“I want everyone to be clear on exactly what my proposal will do. The first and most important thing to know is that my plan does not cut funding for the troops. Our troops will continue to receive the salaries, equipment, training and protection they need. What I am proposing is ending funds for the continued deployment of U.S. forces in Iraq six months after the enactment of the bill. This will require the President to safely redeploy troops from Iraq by that date. “My bill does provide exceptions to allow for specific types of military missions within Iraq past the six-month deadline, such as targeted counter-terrorism efforts, the protection of American personnel and infrastructure, and a limited number of troops needed to help train Iraqi security forces. But these will be limited forces used for specific missions.

“Suggestions that our troops will be left in the lurch couldn’t be further from the truth. My proposal would bring the troops out of harm’s way.”

Throughout the history of the Republic, Congress’ power to limit Presidential power has been tested with the federal court’s acting as the arbiter of the proper balance of power. In 1799, in the undeclared war between the U.S. and France, the Supreme Court held that John Adams had exceeded his authority by ordering commanders to stop ships sailing to or from a French port when Congress had only authorized the President to stop ships headed to French ports. Most recently, in Hamdan v. Rumsfeld, the Supreme Court held that President Bush must follow Congressional guidelines when he sets up military tribunals for detainees. And in legislation similar to Senator Feingold’s current proposal, during the Vietnam War, the Foreign Assistance Act of 1974 capped the number of military personnel in South Vietnam at 4,000 within six months.

It remains to be seen whether Congress will demand the redeployment of troops from Iraq and, if so, whether Bush will refuse. What is clear, however, is that it is time for Congress to lead or follow, and should it seek to lead by ending the war, the Constitution provides the authority for doing so and also the procedure for resolving any resulting conflict with the Executive Branch. Among the many lessons from the nightmare that has become our attempt to plant a democracy in the Middle East is the realization, once again, that our own democracy is an incredible miracle.