Category Archives: Congress

Barnburner

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Hagel is shrill.

[Video has disappeared.]

You can read the transcript at TPM Muckraker.

Bill Brubaker, Debbi Wilgoren and Howard Schneider write for the Washington Post:

The Senate Foreign Relations Committee today passed a nonbinding resolution opposing a troop surge in Iraq, rebuffing the key element of President Bush’s new strategy to end the 46-month-old war, which has claimed the lives of more than 3,000 U.S. service members.

The 12-9 vote came after committee Chairman Joseph R. Biden Jr. (D-Del.) urged his colleagues to approve the bipartisan measure, calling it “an attempt to save the president from making a significant mistake.”

Yeah, I know, it’s nonbinding.

Hagel was the only Republican to vote for the measure.

You think Dems are timid? Suddenly the Republicans are even wussier. They don’t like the war, they say, but a nonbinding resolution against it is going too far.

The ranking Republican on the committee, Sen. Richard G. Lugar (R-Ind.), urged committee members to oppose the resolution drafted by Biden and Sens. Chuck Hagel (R-Neb.), Carl M. Levin (D-Mich.) and Olympia J. Snowe (R-Maine). …

… In debate this morning, Lugar warned that passage would be “the legislative equivalent of a sound bite,” would allow Congress to wash its hands of responsibility for the war and would weaken America’s standing in the eyes of foreign observers.

“We don’t need a resolution to confirm that there is broad discomfort” with the war, Lugar said. “If Congress is going to provide constructive oversight, they must get involved in the weeds” of the policy.

Sen. Bob Corker (R-Tenn.) also opposed the resolution because, he said, it would not be binding on Bush and “will have absolutely zero affect on the administration.” But Corker said he was “not persuaded” the troop surge is “the right thing to do.”

Wusses, I say. They can’t even stand up to put the White House on notice that the Senate disagrees. Does Senator Lugar think the White House is going to invite him over to “get involved in the weeds”?

The Purge

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Following up yesterday’s post on replacing U.S. attorneys — Paul Krugman writes in today’s New York Times,

There’s something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors. …

… Since the middle of last month, the Bush administration has pushed out at least four U.S. attorneys, and possibly as many as seven, without explanation. The list includes Carol Lam, the U.S. attorney for San Diego, who successfully prosecuted Duke Cunningham, a Republican congressman, on major corruption charges. The top F.B.I. official in San Diego told The San Diego Union-Tribune that Ms. Lam’s dismissal would undermine multiple continuing investigations.

In Senate testimony yesterday, Attorney General Alberto Gonzales refused to say how many other attorneys have been asked to resign, calling it a “personnel matter.”

As I wrote yesterday, U.S. attorneys usually are appointed at the beginning of a president’s term and serve for that term. it is not normal to replace U.S. attorneys in the middle of a term except in cases of gross misconduct. I don’t know if the current rash of mid-term firings is unprecedented, but if there is a precedent I haven’t found it.

For a long time the administration nonetheless seemed untouchable, protected both by Republican control of Congress and by its ability to justify anything and everything as necessary for the war on terror. Now, however, the investigations are closing in on the Oval Office. The latest news is that J. Steven Griles, the former deputy secretary of the Interior Department and the poster child for the administration’s systematic policy of putting foxes in charge of henhouses, is finally facing possible indictment.

And the purge of U.S. attorneys looks like a pre-emptive strike against the gathering forces of justice.

As I wrote yesterday, it isn’t necessarily scandalous for a U.S. attorney to be forced to resign. Incoming administrations often ask all or most of their predecessors’ U.S. attorneys to resign. But mid-term firings for no clear reason do look suspicious. And the Bush Administration, through the Patriot Act, has found a way to circumvent the constitutional requirement that U.S. attorneys be confirmed by the Senate. President Bush can appoint “interim” attorneys with no limit on how long the “interim” period will be. So if he doesn’t get around to sending the nominations to the Senate in the next couple of years — well, he’s busy. Got brush to cut, you know.

If someone finds the Krugman column republished outside the firewall, please add the link to the comments.

In other news about the Bush Administration’s contempt for the rule of law and civil liberties — see this New York Times editorial.

It is hard to render a convincing apology when you are not really apologizing. Consider Charles Stimson, the deputy assistant secretary of state for detainee affairs, who has been trying to spin his way out of his loathsome attempt to punish lawyers who represent inmates of the Guantánamo Bay internment camp.

Last week, Mr. Stimson expressed his “shock” that major American law firms would represent terrorism suspects, hinted that they were paid by unsavory characters and suggested that companies should reconsider doing business with them. On Wednesday, Mr. Stimson said he apologized and regretted that his comments “left the impression” that he was attacking the integrity of those lawyers.

It was not just an impression. It was exactly what he did. Mr. Stimson actually read out a list of law firms during an interview with a radio station friendly to the Bush administration.

On top of that, Alberto Gonzales is blaming lawyers for the delays — some as long as five years — in bringing detainees to trial. The editorial continues,

There’s no truth to that. The cause of the delay in bringing any Guantánamo detainee to trial is Mr. Bush himself. He refused to hold trials at first, then refused to work with Congress on the issue and claimed the power to devise his own slanted court system. Mr. Bush went to Congress only when the Supreme Court struck those courts down. The result was a bill establishing military tribunals for detainees that is a mockery of American justice.

U.S. Attorneys: It’s the Replacing, Stupid

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By itself, forcing the resignations of at least seven U.S. attorneys is not necessarily scandalous. Presidents may fire U.S. attorneys, and they do so routinely at the beginning of a new administration.

It is unusual to fire U.S. attorneys in mid-term except in cases of gross misconduct, which doesn’t appear to be the case for the forced resignations under discussion. I don’t yet know how often that’s been done. But the larger issue here is not so much the firing (although the firing is an issue) as it is the replacing. The Bush White House appears to have found another way to gut the Constitution and usurp powers that belong to another branch of government.

Since the office of United States Attorney was created by the Judiciary Act of 1789, U.S. attorneys have been subject to Senate confirmation, per the DOJ’s own web site and Article II, Section 2, paragraph 2 of the Constitution:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The White House didn’t directly nullify the “advice and consent” clause. Instead, through a provision in the Patriot Act reauthorization that went into effect last year, the Attorney General can appoint “interim” replacements who can serve indefinitely without confirmation. Mark Agrast of the Center for American Progress explains:

The administration has managed to bypass the confirmation process by taking advantage of an obscure provision slipped into last year’s PATRIOT Act amendments. Until then, the U.S. Attorney General was permitted to appoint an interim U.S. Attorney for a maximum of 120 days, after which time the vacancy would be filled by the federal district court until a successor could be confirmed. The new provision removes the 120-day expiration date, allowing the Attorney General to appoint interim U.S. Attorneys on an essentially permanent basis, without Senate confirmation.

Precisely why the seven attorneys were forced out of office remains unclear. The most controversial “replacement” so far is J. Timothy Griffin, a former aide to Karl Rove, who will become the new U. S. attorney for the Eastern District of Arkansas. Griffin is replacing Bud Cummins, who was appointed by President Bush in 2001. Per Paul Kiel of TPM Muckracker,

Former Arkansas USA Bud Cummins told the Wall Street Journal that “a top Justice official asked for his resignation in June, saying the White House wanted to give another person the opportunity to serve.” Cummins was finally forced out in December, replaced with Timothy Griffin, formerly the research director of the Republican National Committee.

“Wanted to give another person the opportunity to serve”? What the hell kind of reason is that?

The New York Times:

The Bush administration has appointed an extreme political partisan as the new United States attorney for Arkansas. Normally, the Senate would have vetted him, and quite possibly blocked his appointment. But the White House took advantage of a little-noticed provision of the Patriot Act, which allows it to do an end run around the Senate.

Certainly, the firings look fishy. One of the attorneys was the “Duke” Cunningham prosecutor . Another (allegedly being sacked because of his “management style“) had been engaging in high-profile investigations into companies and executives fraudulently backdating stock-option grants. But in some cases no clear and obvious reason for the “firings” jumps out of news stories.

You can read Sen. Dianne Feinstein’s objections to the “replacings,” here.

It’s the Replacing, Stupid

I want to be sure we’re all clear about this issue, because the Right wants you to think the issue is mostly about the firing, not the replacing.

For example, NRO columnist Andrew McCarthy (in his artfully disingenuous way) justified the new “procedure” by explaining, “One of President Clinton’s very first official acts upon taking office in 1993 was to fire every United States attorney then serving,” except for Michael Chertoff.

It was just politics, plain and simple.

Patronage is the chief spoil of electoral war. For a dozen years, Republicans had been in control of the White House, and, therefore of the appointment of all U.S. attorneys. President Clinton, as was his right, wanted his party’s own people in. So he got rid of the Republican appointees and replaced them with, predominantly, Democrat appointees (or Republicans and Independents who were acceptable to Democrats).

I dug an article about this episode out of the New York Times archives. On March 24, 1993, Attorney General Janet Reno demanded the resignation of all United States Attorneys. At the time, this prompted accusations from the Right that the Clinton Administration was trying to save the political career of Rep. Dan Rostenkowski. (If that was the plan, it didn’t work.)

In any event, as I recall righties banged their pots and howled something fierce about these firings as part of their campaign to destroy Bill Clinton, even though it was a standard practice for an incoming president to replace U.S. attorneys.

Back in 1993, David Johnston of the Times wrote,

All 93 United States Attorneys knew they would be asked to step down, since all are Republican holdovers, and 16 have resigned so far. But the process generally takes much longer and had usually been carried out without the involvement of the Attorney General.

Battles of the Past

Ms. Reno is under pressure to assert her control over appointments at the Justice Department. She was Mr. Clinton’s third choice for Attorney General and arrived after most of the department’s senior positions were already filled by the White House.

The comments of Ms. Reno and Mr. Stephens evoked the pitched battles of the past, when independent United States Attorneys resisted removal by new administrations.

In 1969, for instance Robert Morgenthau, now the Manhattan District Attorney, resisted efforts by the Nixon Administration to replace him as United States Attorney in New York until he was given what he called an “ultimatum” by President Richard M. Nixon to leave office.

In 1978, Attorney General Griffin B. Bell removed David W. Marston as United States Attorney in Philadelphia, provoking charges, never proved, that a lawmaker under scrutiny by Mr. Marston’s office had urged President Jimmy Carter to remove the prosecutor.

Four-Year Terms

United States Attorneys are appointed to serve four-year terms at the pleasure of the President. It was unclear whether Ms. Reno initiated the request for resignations or whether it was pressed on her by the White House. The Attorney General said it was a “joint decision.”

Likewise, in 2001 the Bush Administration replaced Democratic prosecutors with Republican prosecutors. This was expected. And it’s entirely beside the point.

About halfway through his NRO column, McCarthy admits that the Patriot Act did change the procedure for appointments. But McCarthy called the old process “a bizarre arrangement.”

Previously, under the federal code (Title 28, Section 546), if the position of district U.S. attorney became vacant, it could be filled for up to 120 days by an interim appointee selected by the attorney general. What would happen at the end of that 120-day period, if a new appointee (who would likely also be the interim appointee) had not yet been appointed by the president and confirmed by the senate? The old law said the power to appoint an interim U.S. attorney would then shift to the federal district court, whose appointee would serve until the president finally got his own nominee confirmed.

And what was wrong with that?

Law enforcement is exclusively an executive branch power. The Constitution gives the judiciary no role in executive appointments, and the congressional input is limited to senate confirmation. U.S. attorneys are important members of the Justice Department — the top federal law enforcement officers in their districts. But while the attorney general runs the Justice Department, U.S. attorneys work not for the AG but for the president. They are delegated to exercise executive authority the Constitution reposes only in the president, and can thus be terminated at will by the president. Consequently, having the courts make interim appointments made no practical sense, in addition to being constitutionally dubious.

Basically, McCarthy is arguing that the Senate’s “advice and consent” role is purely ceremonial — to rubber stamp the appointments of the President. Under the previous system, if the appointment proved to be controversial and was hung up in the Senate, the President could either withdraw the nominee and appoint somebody else, or the courts would appoint an interim attorney to serve while the President and the Senate haggled. And this, to McCarthy, is unacceptable.

So yes, a president who wanted to bypass the Constitution’s appointments process could fire the U.S. attorney, have the attorney general name an interim appointee, and simply refrain from submitting a nominee to the senate for confirmation. But we’ve also seen plenty of abuse from the Senate side of appointments — and such abuse was not unknown under the old law. Though the president can nominate very able U.S. attorney candidates — just as this president has also nominated very able judicial candidates — those appointments are often stalled in the confirmation process by the senate’s refusal to act, its imperious blue-slip privileges (basically, a veto for senators from the home state of the nominee), and its filibusters.

How dare those Senators question the decisions of the Lord High Decider!

McCarthy finally falls back on the most fundamental principle of conservative ethics — Billy did it first!

It’s worth noting, however, that the same Democrats who will be up in arms now were mum in the 1990s. President Clinton not only fired U.S. attorneys sweepingly and without cause.

Which, as I explained above, is a red herring.

He also appointed high executive-branch officials, such as Justice Department civil-rights division chief Bill Lann Lee, on an “acting” basis even though their positions called for senate confirmation. This sharp maneuver enabled those officials to serve even though it had become clear that they would never be confirmed.

Reporting on Lee on February 26, 1998, the New York Times noted: “Under a Federal law known as the Vacancy Act, a person may serve in an acting capacity for 120 days. But the [Clinton] Administration has argued that another Federal law supersedes the Vacancy Act and gives the Attorney General the power to make temporary law enforcement assignments of any duration.”

To be clear, Lee’s appointment was as Assistant Attorney General for Civil Rights, not as U.S. attorney, and I assume a different part of the federal code applied. The situations are similar in principle, of course. Here is the New York Times article McCarthy cites, and here is a New York Times editorial about the Republicans’ war against Bill Lann Lee.

This story is long and complicated, but in a nutshell, Orrin Hatch, as chairman of the Senate Judiciary Committee, sat on Lee’s nomination. Literally. He scheduled no committee hearings; he just ignored the nomination. The Republicans found Lee’s nomination unacceptable because he had a long record of supporting civil rights and equal opportunity and other scary socialist stuff. Clinton kept him in the job through recess appointments, in the same way John Bolton became a UN ambassador.

McCarthy screams about hypocrisy; where was he when Orrin Hatch sat on Bill Lann Lee’s nomination? Was he wringing his hands because the presidents’ nominee wasn’t allowed an up-or-down vote in the Senate? Somehow, I doubt it.

For the record, I don’t like recess appointments, either, except in case of genuine emergency. But aren’t you just damn tired of Republicans who want the Dems to abide by a stricter set of rules than they accept for themselves? And isn’t there some way we can amend the Constitution so that Washington politicians act like grown ups?

After the Surge

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Yesterday Baghdad suffered its worst day of carnage in more than a month. Most of the violence appears to have been at the hands of Shiites, targeting Sunnis.

MSNBC reports that the Sunni nation of Saudi Arabia is thinking about sending troops into Iraq “should the violence there degenerate into chaos.” Would the Saudi troops favor the well-being of Sunnis, while Iran is backing the Shiites? Is this really a good idea?

No one outside the Bush Administration seems to think the so-called “surge” — which Senator Clinton said today is a “losing strategy” — will have any significant impact on the violence. Still, Congress is not moving all that fast to stop it. Renee Schoof writes for McClatchy Newspapers:

Although most Democrats and some Republicans oppose Bush’s 21,500-member troop increase, Congress isn’t moving very fast to try to stop or alter the plan. Democratic leaders in both houses want their first step to be a resolution calling on lawmakers to go on record as being for or against Bush’s Iraq plan.

Democrats say they have a solid Senate majority against the plan, including perhaps one dozen Republicans, so the resolution is effectively a symbolic vote of no confidence in Bush’s war plan. Only after that vote will they look at ways to use Congress’ power over funding as a hammer.

This may make sense as political strategy, but I fear that by the time Congress does anything concrete the “surge” will be a fait accompli.

On the other hand, this was just posted at WaPo —

Sen. Christopher J. Dodd (D-Conn.) announced legislation today capping the number of troops in Iraq at roughly 130,000, saying that lawmakers should take an up-or-down vote on President Bush’s plan to send additional troops to the country and not settle for the non-binding resolution several Senate leaders prefer.

But for the moment, let’s look ahead to post-surge Iraq. Paul Krugman’s column on Monday called the surge/escalation/augmentation the “Texas Strategy.”

Mr. Bush isn’t Roger Staubach, trying to pull out a win for the Dallas Cowboys. He’s Charles Keating, using other people’s money to keep Lincoln Savings going long after it should have been shut down — and squandering the life savings of thousands of investors, not to mention billions in taxpayer dollars, along the way.

The parallel is actually quite exact. During the savings and loan scandal of the 1980s, people like Mr. Keating kept failed banks going by faking financial success. Mr. Bush has kept a failed war going by faking military success.

The “surge” is just another stalling tactic, designed to buy more time.

I wrote something along the same lines last April, although I wrote about Enron CEO Jeffrey Skilling. I wrote then:

It would have worked out if we’d just stayed the course, the chief executive said. Everything would have been fine if people had had more faith. We failed because we were attacked by people who wanted us to fail.

Bush in Iraq? No, Jeffrey K. Skilling in court.

The former Enron CEO, on trial for multiple counts of conspiracy and fraud, told the court yesterday that Enron’s slide into bankruptcy was caused by a loss of faith.

The Enron execs genuinely seem to have believed that if only they could have kept their losses hidden and maintained the illusion of success a little longer, the Good Profits Fairy would have come along and bailed them out eventually. (And who’s to say that the Bush Administration wouldn’t have given them enough war and disaster profiteering contracts that they’d be riding the gravy train today?) So, in their own minds, they did not fail. As for the bad decisions that put them in a hole to begin with — hey, stuff happens.

Bush’s plan seems to me even more cynical. He just wants to keep the illusion going on long enough that the failure doesn’t happen on his watch. The fact that the “illusion” has already mostly evaporated doesn’t seem to bother him.

On the other hand, maybe he still thinks the Victory Fairy will turn up after all. Robert G. Kaiser wrote in the Sunday New York Times:

In other words, the national security adviser told the president 42 months after this disastrous war began that we can still fix it. A few well-placed bribes plus Yankee ingenuity — pulling this lever, pushing that button — can make things turn out the way we want them to.

Kaiser’s article is really good; you should read it all.

Along the same lines, as John Cole of Balloon Juice points out today, the “Who lost Iraq” mythos is already being written. Be sure to read the whole post for examples from rightie blogs. John Cole concludes,

So they have all the bases covered, you see! If we win, it is because these brave stalwarts stuck it out on their blogs, and lavished unrelenting praise on the troops and the President. They stayed the course, you see, and because of them the troops could get the job done!

If we lose, it wasn’t because of anything this administration, the Pentagon, or their blind support for a leadership that didn’t deserve it. It is because of the lying ass media and those pussy Democrats.

Heads, I win; tails, you lose.

Outside the Bush Administration and its True Believers, conventional wisdom says winning in any meaningful sense is no longer an option. The real questions revolve around disengagement (how’s that for a euphemism?) from Iraq — when, and how? And then after that, we’ll all be wallowing in the political fallout for some time.

Harold Meyerson has an excellent column in WaPo today discussing how that fallout might fall. He looks at the last two presidents who bailed the nation out of unpopular wars — Dwight Eisenhower and Richard Nixon.

As the first Republican to occupy the White House since the coming of the New Deal, Dwight Eisenhower could have chosen to divide the public and try to roll back Franklin Roosevelt’s handiwork. In fact, he didn’t give that option a moment’s consideration. Social Security and unions, he concluded, were here to stay; any attempt to undo them, he wrote, would consign the Republicans to permanent minority status. Ike also ended the Korean War without attacking Democrats in the process.

And then there’s Nixon —

For Nixon, politics was about dividing the electorate and demonizing enemies. Even as he drew down U.S. forces, he did all he could to inflame the war’s already flammable opponents in the hope that however much the people might dislike the war, they would dislike its critics more.

Do we even have to ask which way the Bushies are likely to go? And consider that the damage Nixon did lived on long after him; much of it is still impacting politics (and hurting Democrats) today. I realize that a lot of people, including me, are impatient with the Dems for being cautious. But they have good reasons to be cautious.

It is possible to lose even if we win. By that I mean that it’s possible the Dems could grow the spine to confront the President and force a withdrawal from Iraq, and yet get the worst of the post-war fallout, which would put the Republicans back in business.

It’s likely that the aftermath of our Iraq adventure will be a nasty business, both here and in the Middle East. Please note what I’m saying here. I’m not saying we should stay in Iraq, but that it’s possible the violence and destabilization will escalate after we leave and create new foreign policy problems that we cannot ignore, the way we pretty much ignored Southeast Asia after Vietnam. I ask again, please read this carefully and don’t whine at me that I am some kind of Bush supporter, because I think these bad things are likely to happen if we stay, also. But the Right is not going to make that distinction, and all crises that arise from the Middle East for the next quarter century are likely to stir up fresh howls about Who lost Iraq? You can bet the Dems in Washington realize this and are thinking hard about it right now.

Murtha’s Plan

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Just posted at The Nation by Ari Berman:

At a hearing on Iraq today convened by the Congressional Progressive Caucus, Congressman Jack Murtha offered a preview of how he plans to reign in the Bush Administration, from the perch of his chairmanship of the Defense Subcommittee on the House Appropriations Committee.

Murtha announced his intention to use the power of the purse try and close US prisons at Abu Ghraib and Guantanamo Bay, eliminate the signing statements President Bush uses to secretly expand executive power and restrict the building of permanent bases in Iraq.

And starting February 17, Murtha will begin holding “extensive hearings” to block an escalation of the war in Iraq and ultimately redeploy US troops out of the conflict. Murtha predicts that a non-binding resolution criticizing Bush’s expansion of the war would pass the Congress by a two to one vote. But he believes that only money, not words, will get the President’s attention.

Be sure to read the whole thing.

Bleep Lieberman

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Michael Isikoff and Mark Hosenball of Newsweek write that Senator Joe “Vichycrat” Lieberman has “quietly” decided to give President Bush a pass on Katrina.

Sen. Joe Lieberman, the only Democrat to endorse President Bush’s new plan for Iraq, has quietly backed away from his pre-election demands that the White House turn over potentially embarrassing documents relating to its handling of the Hurricane Katrina disaster in New Orleans.

Lieberman’s reversal underscores the new role that he is seeking to play in the Senate as the leading apostle of bipartisanship, especially on national-security issues.

Conventional wisdom says that Lieberman is so much in love with his self-image of the Good German Democrat that he’d send his mother to Iraq to make Bush happy. Of course, it’s always possible someone is paying him off.

On Wednesday night, Bush conspicuously cited Lieberman’s advice as being the inspiration for creating a new “bipartisan working group” on Capitol Hill that he said will “help us come together across party lines to win the war on terror.”

Talk about someone backing the wrong horse.

Last year, when he was running for re-election in Connecticut, Lieberman was a vocal critic of the administration’s handling of Katrina. He was especially dismayed by its failure to turn over key records that could have shed light on internal White House deliberations about the hurricane, including those involving President Bush.

Asserting that there were “too many important questions that cannot be answered,” Lieberman and other committee Democrats complained in a statement last year that the panel “did not receive information or documents showing what actually was going on in the White House.” …

…But now that he chairs the homeland panel—and is in a position to subpoena the records—Lieberman has decided not to pursue the material, according to Leslie Phillips, the senator’s chief committee spokeswoman. “The senator now intends to focus his attention on the future security of the American people and other matters and does not expect to revisit the White House’s role in Katrina,” she told NEWSWEEK.

Joe is finding other ways to sell us all out. From an editorial in today’s New York Times:

Making his umpteenth pitch to Congress to provide more security money for New York City, Mayor Michael Bloomberg stated the obvious when he said that money to defend against terrorism should be divvied up based on an assessment of risks, not “spread across the country like peanut butter.” After all, his testimony to the Senate Homeland Security and Governmental Affairs Committee echoed one of the key recommendations of the 9/11 Commission. The mayor estimated that more than $3 billion had been distributed in this lunatic way to date.

Unfortunately, the committee’s incoming chairman, Senator Joseph Lieberman, is partial to peanut butter. Mr. Lieberman, who won re-election last November as an independent with help from Mr. Bloomberg, continues to believe that every state, regardless of the risks or threats it faces, should be getting antiterrorism money. In negotiations with the House, Mr. Lieberman is seeking a “compromise” formula that preserves guaranteed minimums for relatively low-risk places like his home state of Connecticut. The minimums he wants well exceed the financing favored by the House, and cannot be justified on the basis of national security.

If the Senator isn’t pocketing a generous amount of “thanks” from somebody besides his constituents ….

Manisfesto

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I started out to write a letter to the editor, and (you know me!) went on way too long. But here’s a first draft, submitted for your correction and comments. I’ll do a podcast version and maybe tidy it up and whittle it down for the newspaper letter editors later this afternoon.

As I write this, Congress is debating the President’s proposed troop escalation. And pundits are debating whether attempting to stop escalation is politically smart. But there are larger issues here than politics or even the war itself. The debate over escalation in Iraq is also a debate over the integrity of our Constitution and the system of government that has sustained this nation for 218 years.

Even a sloppy reading of American history should tell us that the Founding Fathers never intended one man, even one with a title so lofty as Commander-in-Chief, to have the power to deploy the military any way he wants for as long as he wants at his own discretion.

History had provided many examples of one man with control of an army seizing dictatorial powers. For this reason, the authors of the Constitution divided authority over war and the military between Congress and the President. Consider that an early draft of Section 8 gave Congress the authority “to make war,” not just to declare war. The change was made to allow the President some leeway to act quickly without congressional debate when enemy troops are landing on our shores. It was not intended to strip Congress of all but a ceremonial role in approving the President’s war plans.

Most of the authors of the Constitution were loathe even to maintain a standing army. For that reason, the Founding Fathers decided to keep only a minimal federal force and primarily rely on state militias for the nation’s defense (Article I, Section 8, clauses 15 and 16). The militias were to be under the command of the several state governors until called into federal service (with a governor’s permission) by Congress and the President, which further divided control of the military between the state and federal governments.

The original militia system proved inadequate for the nation’s defense, and in the 20th century the state militias became today’s National Guard. But the National Guard was never intended to be the President’s personal plaything, and the citizen soldiers of the Guard cannot – must not — be kept in a foreign war merely at the President’s pleasure.

It was not until the Cold War that the United States chose to maintain a formidable federal military at all times, war or no. Our military might requires more, not less, vigilance that the nation’s war powers not fall into the hands of just one man.

President George W. Bush has embraced a controversial theory called the “unitary executive” to justify his increasingly autocratic powers. In issues from warrantless surveillance to stripping a citizen of the right of habeas corpus at his discretion, President Bush has pushed the powers of the presidency far beyond what any President has assumed before. And this includes wartime presidents such as Abraham Lincoln and Franklin Roosevelt.

President Bush justifies these powers by evoking the threat of terrorism. I was in lower Manhattan on September 11, and I have seen the worst that terrorism can do with my own eyes. I know that terrorism destroys precious lives, landmarks, and vital infrastructure.

But terrorists cannot destroy the United States. Terrorists cannot occupy our territory and force us to abandon our political institutions to despotism. Only we can do that.

Today many television and newspaper pundits warn our senators and representatives that trying to stop the escalation is politically risky. Why stopping the unpopular acts of an unpopular President should be politically risky isn’t clear to me, but we are told it is. Today the men and women we elected to represent us struggle to find the courage to enact the will of We, the People. Instead, they tiptoe about in fear of the White House and will not use the power the Constitution gives them. The system of checks and balances has withered away, and a single secretive, autocratic man who has shown us little else but bumbling incompetence and moral cowardice for the past six years rules the nation like Caesar. How did we come to this?

I ask our senators and congresspersons to please look beyond their personal ambitions and whatever heat they might take from the President’s apologists. Instead, please think of the nation. Think of the soldiers whose lives are forfeit to President Bush’s stubborn refusal to face reality. And think of preserving the Constitution and the integrity of the separation of powers for generations to come.

Our Last, Best Hope?

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Hope Yen of the Associated Press reported today:

President Bush will address the nation at 9 p.m. EST Wednesday about his new approach for the war in Iraq , the White House said. Bush is expected to announce an increase of up to 20,000 additional U.S. troops.

Yen goes on to report House Speaker (yay!) Nancy Pelosi’s announcement that Congress might not approve funds for military escalation in Iraq, and that Pelosi and Senate Majority Leader (yay!) Harry Reid sent a letter to Bush last week that said it was time to begin withdrawing troops from Iraq.

However,

Sen. Joe Biden, chairman of the Senate Foreign Relations Committee and a 2008 presidential candidate, said increasing troops would be a “tragic mistake.” But he contended Congress was constitutionally powerless to second-guess Bush‘s military strategy because lawmakers had voted to authorize the commander in chief to wage war.

I think that Biden is wrong on the Constitutional issue, and have said so before.

Shaun Waterman writes for the World Peace Harold:

“It’s a fundamental constitutional principle that Congress can initiate and regulate war,” law Prof. Neil Kinkopf of Georgia State University told United Press International.

Kinkopf, a former Clinton administration Justice Department official who worked in the Office of Legal Counsel, authored a paper for the American Constitution Society last week arguing that Congress has the power to stop President Bush sending additional troops to Iraq — a move many expect him to announce this week.

I think Biden is hiding behind the Constitution to avoid the political risk of confronting Bush directly. Personally, I think he’s taking the greater political risk by being a wuss. Biden recently announced he is a candidate for the presidency in ’08. Does he seriously think he’s going to survive the primaries by being a Bush appeaser?

But let’s stick with constitutional issues for now. There’s no question that, over the years, the separation of powers between Congress and the White House vis à vis war have been corrupted considerably. Alexander Hamilton made it clear (well, pretty clear, given the 18th century English) in Federalist #69 that the President’s role of commander in chief had limits (emphasis added).

The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. …” … The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.

Hamilton’s views on the CinC role as expressed in Federalist #69 and elsewhere were that the President was something like a supreme military commander, coordinating the forces of the army, navy, and militia (which would morph into the National Guard, but that’s a long story) during time of war. Remember, the Founding Guys were preparing to tap George Washington for the CinC position. There was also some discussion among the FG’s about possibly relieving a president of the CinC job if he proved not to be too good at it. Unfortunately, they didn’t put that into writing.

Findlaw has an annotated Constitution online that I find to be an excellent resource for understanding constitutional issues. Here is the annotation for the duties of the commander-in-chief addressed in Article II, Section 2, first paragraph. The annotation provides a thumbnail history of how the CinC role became expanded and enlarged over the years. Much of this enlargement came about to enable the President to respond to emergencies — invasions and insurrections — in a timely manner, without having to convene Congress and have a debate. There were other reasons for tilting the war powers toward the executive branch that Findlaw discusses that I’m not going to review here.

Now, compare and contrast to the war powers of Congress in Article I, Section 8, paragraphs 11-14. The Findlaw annotation suggests there was considerable disagreement among the authors of the constitution about exactly who was responsible for what. Congress alone has the power to declare war, but court challenges arising from the Civil War brought about a SCOTUS decision that a state of war could exist without Congress declaring it. The question that haunts us to the present day is, “whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.”

Skipping ahead, we get to the War Powers Act of 1973. Dahlia Lithwick explains,

Under the War Powers Act, the president has 90 days after introducing troops into hostilities to obtain congressional approval of that action. It looks good on paper, but presidents have generally ignored the War Powers Act, citing Article II, Section 2 as their authority to send soldiers into combat.

But that takes us back to the original separation of powers issue — who gets to decide when the nation should commit troops? Although the Constitution doesn’t spell this out specifically, I do not believe the authors of the Constitution intended the President to have the power to send troops wherever he likes as long as he likes at his discretion.

We’re hearing a lot of noise from the pundits about the “power of the purse,” as if Congress’s only responsibility to the military is to fund it. But the Constitution provides that Congress alone not only has the power to declare war, also Congress is to “make Rules for the Government and Regulation of the land and naval Forces.” Further, Congress alone has the explicit authority to “punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” the latter being as close to a global war on terror as the Founders might have imagined, IMO.

Very basically, my reading of the Constitution and various testaments of its authors suggest to me that the intention was to give Congress the authority to make political decisions about committing troops, and the president the authority to decide how to use the nation’s military resources to carry out the will of Congress. Although the President has some power to use military force without waiting for Congress’s permission, it’s going way too far to claim that Congress has nothing whatsoever to say about how the President uses the military and can check him only by denying funds. I believe Congress does have the authority, under the Constitution, to order the President to clean up his mess and bring the war in Iraq to a close.

This is an important point, because denying all funds for the Iraq War could have some consequences the advocates of that tactic haven’t thought out. I believe strongly that if the tactic would put our troops overseas at any increased risk whatsoever, it’s the wrong move. Further, that kind of brute force grandstanding could put the nation’s government into serious disarray and invite a mighty backlash against the tactic’s perpetrators. It’s a highly dangerous move, in other words, and I don’t blame Democrats for being reluctant to make that move.

But here’s the good news, courtesy of Think Progress:

According to a tally by Think Progress, only seven lawmakers have given their public support to Bush’s escalation plan, twenty-three have come out in opposition, and fifteen have said they will withhold judgement for now.

Think Progress will be keeping tabs on who is willing to go along with Bush’s misguided plan and who is speaking out against it here. Help us keep it updated by leaving more examples in the comments. (Or send us an email).

A veto-proof, bipartisan majority in Congress willing to say no to Bush would be the best of all possible developments. Not only would it pave the way for Congress to exert more authority; bipartisanship means neither party would take the blame for whatever mess Iraq is left in when we leave. I believe this is to the Republicans’ advantage as well as Democrats’, which is why I’ve had some hope for awhile that congressional Republicans eventually will choose to throw Bush overboard to save themselves. And that eventuality is, IMO, getting closer every day.

From The Economist:

Bush’s double-or-quits policy is rife with risks, not just in the Middle East — where the hanging of Saddam Hussein reminded the world just how far Iraq has sunk — but also back home.

They are risks that threaten to reduce Bush to Nixonian levels of isolation, and that threaten long-term damage to the Republican Party. Bush told journalist Bob Woodward that he would not withdraw from Iraq even if his wife and dog were the only people left on his side. The jest may not prove idle.

This might sound like hyperbole. Bush is currently receiving powerful support for surge from two of the country’s most prominent politicians: John McCain, who is the front-runner to win the Republican nomination in 2008, and Joe Lieberman, a former Democratic vice presidential candidate who defeated an anti-war Democrat in last year’s congressional elections. The two men are back from a 10-day visit to Iraq, and are even more voluble than usual.

At the same time, the Democratic leadership continues to be nervous about confronting Bush directly on the subject. Harry Reid, the new Senate majority leader, proclaimed his support for surge under certain conditions, before changing his mind a couple of days later. Hillary Clinton pulled the opposite trick — first coming out against surge, then laying down conditions that would make her change her mind.

But the hyperbole is fast becoming reality. McCain and Lieberman are part of a diminishing band of diehards on the Iraq War (Lieberman is a band of one on the Democratic side). And the Democratic leadership is likely to be forced to drop its equivocations over the next few weeks.

The most worrying problem for Bush, though, is the growing hostility to surge in his own party. Chuck Hagel’s description of the policy as Alice in Wonderland is par for the course: the senator for Nebraska has long criticized the war. But now two other senators who face uphill races for re-election in 2008 have added their voices to the criticism: Oregon’s Gordon Smith and Minnesota’s Norm Coleman.

Robert Novak, a long-time Republican-watcher, says Bush will find it hard to get the support of more than a dozen of the 49 Republican senators for sending more troops.

You can do your part to shove matters along by leaning on your Senators and Congress critters and signing Moveon’s petition against escalation.

Remember, Iraq isn’t the only serious issue we face now. The Democrats will be holding investigations and hearings on other critical matters, like torture and surveillance without warrants. These should not be seen as minor, secondary details to Iraq. And some semblance of bipartisanship would strengthen the Dems’ hands.

Sorta kinda related: Jeremy Brecher and Brendan Smith write at AlterNet that the Democratic Congress and the Republican White House seem to be engaged in a Constitutional collision course, and not just on Iraq.

Promising Developments

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Nico at Think Progress:

This morning on CBS’s Face the Nation, Speaker Nancy Pelosi (D-CA) announced that Congress may refuse to authorize funding for an escalation of U.S. forces to Iraq if President Bush cannot justify the strategy.

Pelosi stated clearly that Congress will fully support all U.S. forces currently in Iraq. “But if the president wants to add to this mission, he is going to have to justify it,” Pelosi said. “This is new for him because up until now the Republican Congress has given a blank check with no oversight, no standards, no conditions, and we have gone into this situation, which is a war without end, which the American people have rejected.”

See also Taylor Marsh and Bob Geiger.