And, if it wants to stop a war with Iran, it better take action to do so.
Senator Russell Feingold (D-WI) brought together a panel of legal scholars, many with experience in the executive and legislative branches of government, to examine what power Congress has to stop the Iraq War. The hearing demonstrated the constitutional basis for Congress acting to end the war. At the outset he said the purpose was not to discuss the policy pros and cons of Congressional action, but rather to look at the legal issues. What does the Constitution authorize the Congress to do?
"The Constitution makes Congress a coequal branch of government. It's time we start acting like it," said Feingold at the outset of the hearing. He accused the president of ignoring the will of the voters expressed on Election Day and therefore "it is up to Congress to act." He was joined by Republican Senator Arlen Specter (R-PA), the former Chairman of the Judiciary Committee, who challenged President Bush's declaration that "I am the decision-maker" on issues of war, Specter saying "I would suggest respectfully to the president that he is not the sole decider -- the decider is a shared and joint responsibility."
The hearing was frequently broken up by outbursts from more than a dozen anti-war protesters, who were asked several times to be quiet. One protester interrupted Sen. Orrin Hatch (R-UT) to exclaim her son was being sent back to Iraq for his third tour of duty. Hatch expressed sympathy but then went on talking about the need to support U.S. troops. The protesters were not thrown out despite police being called to the packed hearing room.
At the conclusion of the hearing Feingold said "Congress has the power to stop the war, if we want to." Further, "Congress has the responsibility to stand up to the president when he is not acting in the national interest." Feingold also dealt with some of the common claims of opponents of congressional action. He argued that using the power of the purse does not threaten the troops. "The troops will remain safe as we will provide them with the protection they need. Forcing the president to safely bring the troops home protects the troops." He also argued that "setting a clear policy is not micromanaging it is exactly what Congress is supposed to do." He concluded that "any effort to end the war requires us to protect our troops and our national security" and announced he would be introducing a bill tomorrow to require redeployment of U.S. troops in six months.
The first witness was Professor David J. Barron of Harvard Law School who argued that the Congress has a "substantial zone of authority" when it comes to war policy. He said the framers realized that if a war goes on for years, with tens of thousands of troops, that appropriations would be needed. So, by giving Congress the power of the purse they were giving the Congress significant power over the continuation of military actions. Congress has used its powers to cut off or put conditions on funding for many wars including Vietnam as well as conflicts in Cambodia, Somalia and Bosnia.
This was consistent with the view of the next witness, Robert Turner of the University of Virginia Law School, who said Congress has very specific powers: to declare war, to raise armies and to appropriate funds for wars. But, this is balanced with the powers of the president who has responsibility over the general management of the relationship between the United States and the external world. Therefore the Congressional power to declare war should be construed strictly. Turner's views provided the greatest power to the president of any of the panelists but he acknowledged that Congress has the power to limit the "duration and scope" of military activity and "once Congress acts that limits the scope of the president's power." But Turner warned Congress claiming Congress had made itself responsible for the deaths of the 1.7 million Cambodians by denying funds to wage war inside Cambodia and Congress bore responsibility, according to Turner, for the deaths of 241 marines killed by a suicide bomber in Lebanon in 1983 because it raised the question of forcing a withdrawal there.
Lewis Fisher, who is a specialist in Constitutional Law for the Law Library of the Library of Congress, describing Congressional power by saying "Congress has the authority, duty and responsibility to decide national policy - that is why you are elected." He went on to say "The people give you their sovereign power temporarily. The power is with the people and you are a temporary custodian." He said Congress has the responsibility to make sure the public's will was carried out or they may not find themselves in office in the future. Further, the framers rejected models of government where the executive was given all power over foreign power and instead put their faith in the deliberative process of a legislature. He described the rational of checks and balances put in place by the framers of the Constitution as recognition that human nature is not trustworthy. Therefore, "when you passed the use of force resolution you did not cede authority, in fact, you have a duty to revisit this." Fisher argued that Congress has the responsibility to consider "whether continued use of military force is in the national interest. That is the core question."
Also testifying was Bradford A. Berenson, who served as Associate Counsel to the President from January 2001 to January 2003. He noted at the outset that the country is best off when the two branches of government are consulting with each other and working together. He saw three spheres of influence over war (1) legislative power; (2) executive power; and (3) shared power. The power exclusive to the legislature is to declare war, raise arms, and regulate warfare so long as it does not interfere in the power of the executive who has sole power as commander in chief. The power as commander in chief gives exclusive power over tactics, strategy and selecting sub-commanders. Congressional power is over broad national policy, e.g. where we fight, who the enemy is, and how many troops can be used. If the Congress wanted to say "end hostility within six months," doing so would be in its constitutional power but the president would still have emergency powers to protect the troops in that process. He concluded "the constitutional scheme does give Congress broad authority to terminate a war."
The final speaker was Walter Dellinger, a former Solicitor General of the United States who is a professor at Duke University. He said the president had "authority to command the troops and a great deal of authority to protect national security, when Congress is silent. But when Congress has acted to decide the size, scope and duration of military force, it limits the president." He said the Congressional power is not "all or nothing, but they can limit the president" after they grant authority to go to war. Dellinger did not believe that Congress was limited to the power of the purse but rather could limit presidential actions under the necessary and proper clause of the Constitution as well.
Senator Ted Kennedy (D-MA) brought up the issue of Iran asking whether or not the president had authority to attack Iran or whether Congressional action was necessary. Professor Turner said that the president does have the power to protect the troops from Iran in isolated incidents, but beyond that he would need Congressional authority. Professor Barron looked to the authorization of force resolution and asked whether that provided sufficient power. Further, he said Congress could take action to restrict the president. Berenson said this was an area of shared power, the president could act to protect national security in the absence of congressional legislation and this could include acting to prevent Iran from having nuclear weapons. Professor Dellinger said the president has the authority to introduce troops into hostilities, but not into a war. Further, Congress can impose limits before or after such hostilities.
Senator Dick Durbin (D-IL) asked about whether since the predicates for the Iraq invasion, i.e. weapons of mass destruction and the abusive rule of Saddam Hussein, were no longer in existence if the resolution authorizing force was still valid. Professor Turner said that the approval of appropriations can be sufficient to provide ongoing authority. But if Congress puts on limits that would be controlling. Professor Dellinger said that the predicates of the October 2002 resolution no longer being valid show the importance of Congress revisiting the issue. He argued that "we need debate on whether this policy is in the national interest. We owe it to soldiers and their families to have that debate."
This hearing built the case that Congress has the power to end the war, but it went further showing the Congress has the responsibility to revisit the Iraq War in order to represent the views of the voters and determine whether the policy is in the national interest. And, with all the evidence indicating potential military action against Iran it is imperative for Congress to revisit the issue to prevent the president from expanding the war in Iran.
For more on the power of Congress see:
"Congress Has the Power to Prevent Escalation and End the War," http://democracyrising.us/content/view/712/151/
"Total Bull' That Congress Can't Stop Bush Iraq Escalation Plan Says John Edwards" http://democracyrising.us/content/view/735/164/