Wednesday, January 31, 2007

Congress and the War

A lot of commentary has been put forth on the limitations of what exactly Congress can do to limit President Bush's escalation of the Iraq war. A lot of this commentary, in my opinion, is quite wrong.

Kevin Drum and Big Tent Democrat argue that the only Constitutional option available to Congress to limit President Bush's war making is to cut off funding. They argue that something like Obama's proposal to limit the number of troops that Bush may use in Iraq is an unconstitutional violation of separation of powers. I am decidedly unconvinced by their arguments as I'll show below.

For other view in opposition to Drum and Big Tent see Matthew Yglasias and Mark Kleiman.

The first place to start in understanding why Drum and Big Tent are wrong is to read Glen Greenwald's recounting of how the Congress has, in fact, already exercised the powers that folks are arguing it can't. In 1993 Congress expressly limited the forces which could be used in Somalia and set dates as to when those forces had to be removed. The passage of those resolutions limiting Presidential authority was lead by Republicans in Congress, including many of those arguing now that such legislation is unconstitutional. At the time, not only were had these Republicans not yet discovered the unconstitutionality of the legislation, but no one else was apparently aware of it as well. The sudden discovery of this principal well into the third century of the Republic's existence suggests to me that it is not built on a firm foundation.

The arguments for limited allowed Congressional response seem to me to depend upon very odd assumptions about the inherent power of a "commander-in-chief". The arguments seem to insist that it is an inherent power of a "commander-in-chief" to use any and all forces under his command to achieve whatever objectives have been assigned to him. In other words the only option open to the people of the United States should we deem that some limited military action against some foreign power is called for are:

  1. Forgo the action and live with the condition that called for the action, however dire it might be.
  2. Declare war, in which case the President may use every last bit of the military of the United States against this power, however unwise such a large use of force might seem

The one option which is absolutely forbidden to us is to declare war and direct the President to eliminate the condition which provoked hostilities using only that portion of the military deemed wise to use. Why this option should be forbidden is a complete mystery to me.

At every level of command in the entire structure of the United States military it is a perfectly normal event that a commander is

  1. assigned an objective to achieve
  2. instructed as to what portion of the forces under his command may be dedicated to the objective.

There is no general rule that if an officer is assigned some objective that he may always use the entirety of his forces to achieve it. Military command would, in general, be rendered impossible if a commanding officer could not order a subordinate to accomplish some tasks using a portion of the subordinate's forces while leaving the rest in place. I have seen absolutely no reason why the President as commander-in-chief should not face the same condition.

In the President's case the military objectives he is given are set by Congress via a declaration of war. And just like any other commander of some portion of the United States Army and Navy, it is perfectly reasonable for Congress to assign to the President not only the objective but what forces he may use to achieve it.

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