Fighting wars, past and future

With the release today of the Quadrennial Defense Review (QDR) of 2006, it's worth reflecting a bit on the high-tech, "light footprint" model that Defense Secretary Rumsfeld prefers for military conflicts.  (The report is dated 02/06/06, but it was released on 02/03/06.)

Stephen Biddle reflected on The New Way of War? in the May/June 2002 Foreign Affairs, reviewing three books on the Kosovo War.  That conflict was taken by air power advocates as a validation of the idea that wars could be won almost exclusively through the use of air power, with minimal commitment of ground troops.

The Afghan War was also initiated using the model of heavy air power with few American

In Afghanistan, as in Kosovo, the war began with a high-tech air campaign doing the heavy lifting with minimal U.S. ground presence. Among the Afghan campaign's most salient features has been the effort to limit U.S. casualties - even at the cost of effectiveness. The central war aims in Afghanistan were to deny the country to al Qaeda and to destroy the al Qaeda elements based there. Ousting the Taliban was a means, not an end. Yet once the Taliban fell and it came time to realize the payoff by rounding up bin Laden and his operatives, the U.S. military drew back from the dirty work of cave-to-cave fighting in Tora Bora and elsewhere, relying on local proxies instead - much as it delegated the ground fighting against Serbia in 1999 to the Kosovo Liberation Army. With their own interests at heart, not America's, these Afghan and Pakistani proxies allowed the quarry to escape. Washington now hopes that Hamid Karzai's interim government, backed by a handful of international peacekeepers, can stabilize Afghanistan and prevent al Qaeda's return, but so far it has insisted that this be done without any major U.S. ground forces to help. So U.S. policymakers have implemented the new way of war even more completely than in Kosovo; the Clinton administration at least agreed to a major U.S. postwar peacekeeping contingent.

Whether the new way of war will persist in the face of experience remains to be seen. As this review goes to press, the ground fighting in Operation Anaconda suggests that Tora Bora may have triggered a debate within the administration over the importance of casualty minimization at the cost of mission effectiveness. To date, however, the similarity between U.S. casualty aversion in Afghanistan and Kosovo - and the contrast between either one and, say, World War II on this score - has been striking. (my emphasis)

Biddle is not alone in questioning whether this model makes sense as a permanent assumption.  Part of the reason for the optimistic estimates I mentioned in my last past about drawdowns of troops in Iraq is that Rumsfeld and his neoconservative planners had staked their gradiose schemes for wars of liberation in the Middle East on the notion that governments could be outsted and societies transformed with relatively small numbers of American troops.  Biddle wrote:

So far at least, the new American way of war is alive and well, but in a world where its premises are no longer valid. When legitimate but remote interests limited the public's willingness to sustain costs, a strategy of warfare on the cheap arguably made sense. After 19 hijackers killed thousands of Americans on U.S. soil, however, the public has become willing to shoulder real costs - including real casualties - to defeat a clear and present danger. Yet in important respects, Washington has continued to behave as though the strategic context were March 1999 rather than October 2001. The twin specters of Vietnam and the Soviets' defeat by Afghan mujahideen still clearly loom large, making the administration wary of ensnarement in a guerrilla quagmire. Yet there may be times when only major commitments can counter major threats, and occasions where real costs are worth bearing. Rooting fanatical Japanese from caves on Iwo Jima and Okinawa cost thousands of American lives, but the country shouldered the sacrifice for the sake of a transcendent cause. (my emphasis)

The Republicans, though, have not wanted to ask affluent voters to make any extra sacrifices, even for the war in Iraq that they claim to consider so vital.  The Republican Party exists to comfort the comfortable here at home. And higher taxes to pay for wars, or - God forbid! - a military draft that would require affluent Republican young people to serve in the military, tend to discomfort people.

Iraq War: "Can it be that it was all so simple then?"

Can it be that it was all so simple then?
Or has time rewritten every line?
                           - "The Way We Were"

A flashback to the past: Reduction in U.S. Troops Eyed for '04 : Gradual Exit Strategy Tied to Iraq's Stability by Thomas E. Ricks Washington Post 10/19/03. Ricks wrote back then:

U.S. military commanders have developed a plan to steadily cut back troop levels in Iraq next year, several senior Army officers said in recent interviews.

There are now 130,000 U.S. troops in Iraq. The plan to cut that number is well advanced and has been described in broad outline to Defense Secretary Donald H. Rumsfeld but has not yet been approved by him. It would begin to draw down forces next spring, cutting the number of troops to fewer than 100,000 by next summer and then to 50,000 by mid-2005, officers involved in the planning said.

Oh, yes, back in the day...

The optimistic estimates that have been popping up lately in the US and British press are holding out hope that US troop levels in Iraq may drop below 100,000 sometime this year.  Something sounds vaguely familiar about this.

How were they planning to do this back in 2003?  Well, according to Ricks:

Officials involved in the discussions about troop reductions insist that implementation will be dictated not by a set timetable, but by security conditions in Iraq. Nonetheless, the drawdown is tied to events that are scheduled to begin in January [2004], when a major round of U.S. troop rotations that will last several months is to get underway.

During that period, the U.S. military hopes to turn over as many basic security functions as possible to the Iraqi security forces now being created and to any additional foreign peacekeepers that U.S. diplomacy secures. If the Iraqi security forces can shoulder more of the security burden, it might be possible to replace the departing divisions of about 16,000 troops each with brigades of about 5,000 each.

Over the spring, that changeover would represent a cumulative reduction of more than 30,000 soldiers; along with other cuts, it could lower the U.S. troop level to fewer than 100,000 by mid-2004.

As more units of Iraqi soldiers and civil defense troops are created, and as some additional foreign peacekeepers begin to arrive, cuts in U.S. troop levels would continue next year. Ideally, said one official involved in the planning, by mid-2005 the number of U.S. troops would be as low as 40,000. Army planners consider a presence of that size to be sustainable for years without placing undue stress on the overall force. (my emphasis)

The plan seems to have been, "As the Iraqis stand up, we'll stand down".  We're still waiting on those "additional foreign peacekeepers", though.

Maybe the Pentagon is at least saving a few bucks on public relations by just recycling the same old press stories year after year after year.

Chancellor Merkel, the US and Germany

Friday's Christian Science Monitor has a short article on German Chancellor Angela Merkel's foreign policy: Merkel shines on world stage: From Moscow to Gaza, the German chancellor's cool, pragmatic style wins praise by Andreas Tzortzis. This seems to be a good, brief summary of her posture toward the US:

A political student of Schröder's predecessor Helmut Kohl, who favored strong transatlantic ties, Merkel has said she wants to return Germany its role as a mediator both within Europe and across the Atlantic. While Merkel's recent visit with Mr. Bush in Washington was "a very public demonstration of a change of style and rhetoric from the Schröder era," says Ms. Donfried of the German Marshall Fund, she also cautions that the chancellor must tread carefully.

"As much as Angela Merkel wants to revitalize German-American relations," Donfried explains, "she knows that this American president and his policies are not popular with her public."

Merkel's approach has so far proved successful not only abroad, but among political opponents at home as well.

"She represents a new form of body language, of style, and you could see that in her Washington trip, in her trip to Moscow," says Gert Weisskirchen, foreign policy spokesman of the Social Democrat parliamentary group. "It's encouraging that she sought dialogue with NGOs in Russia, as well as her willingness to clearly state the European position on Guantánamo Bay."

The general public outrage in Europe over the secret prisons, CIA kidnapping and torture have already seriously complicated her desire to improve relations with the US, though. Since officials of EU countries who cooperated with such policies could be prosecuted, and governments that cooperated could face sanctions if they violated EU standards, those are not at all small problems.

Jack Ewing also reported for Business Week on 01/26/06 that Merkel Makes Waves at Davos. Ewing pretty much gushes over her, saying that she has already "emerged as the most dynamic leader in Europe."

Of course, his impression seems to be based on conventional cues that American business journalists are often quick to read into European politics.  Ewing reports:

Merkel called for a massive reduction in bureaucracy in both Europe and Germany, and an increase in the retirement age, among other measures. "We have to be more flexible. We're holding back enormous potential," she said.

Cutting back bureaucracy, cut back the retirement program, reduce unemployment insurance coverage: in conventional American terms, these sound like conservative, "pro-business" positions that can mislead journalists when they assume that it sounds Republican, and jump to the assumption that a conservative European administration is automatically going to be friendlier to a Republican administration.

Repeated experience doesn't seem to shake this habit for many of them.  Tony Blair the British socialist (Labour is a social-democratic party and a member of the Socialist International) has been Bush's most enthusiastic booster on the Iraq War, to the point that his critics have called him Bush's poodle.  Conservative French President Jacques Chirac, on the other hand, is hated by good loyal Republicans almost as much (if not more!) than they hate Osama bin Laden.

Ewing writes, "Since she was chosen in November to lead a coalition government of her Christian Democrats and the center-left Social Democrats, Merkel has repaired relations with the U.S., strained by the Iraq war."

As I've said here before, I'm sure Merkel would like to repair relations with the US.  But will the Bush administration let her? It's hard to see how that's gone very far at this point.  If anything, the disputes over torture and CIA kidnapping have raised even more problems for European governments, including Germany, to cooperate with the US on counterterrorism work.

And while the Bush and his senior officials may be less personally resentful of Merkel than of Schröder, the foreign minister is a Social Democrat in her Grand Coalition government. And other than atmospherics, it's not clear to me that Merkel is breaking with the previous government's policies in any significant way, so far, including relations with America.  Joschka Fischer, the Green foreign minister in Schröder's government, was actually consideredto be one of the most "pro-American" of the European foreign ministers.

This report from the Guardian seems a bit more reasonably balanced: Merkel mends fences in Washington by Jamie Wilson and Luke Harding 01/14/06.  They report that the atmospherics were good.  However:

But Ms Merkel made it clear she will not be anybody's patsy, raising with Mr Bush the issue of Guantánamo Bay, which she has publicly said should be closed down. "There have been differences of opinion, I mentioned Guantánamo in this respect," she said. But he rejected the suggestion the prison camp on Cuba should be shut, describing it as "a necessary part of protecting the American people".

My guess is that Bush did not have pleasant things to say in private about her bringing up Gitmo, either in private or especially in public.  If his feelings are too delicate to see Cindy Sheehan's t-shirt, I doubt he was much pleased by Chancellor Merkel advice.

Presidential powers (2)

(Continued from the previous post)

Louis Fisher of  the Congressional Research Service (CRS) testified:

The framers gave Congress the power to initiate war because they believed that Presidents, in their search for fame and personal glory, would have too great an appetite for war. John Jay, generally supportive of executive power, warned in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”

In studying history and politics, the framers came to fear the Executive’s potential appetite for war. Has human nature changed in recent decades to permit us to trust independent presidential decisions in war? The historical record tells us that what Jay said in 1788 applies equally well to contemporary times. (my emphasis)

For the Halliburton Republicans, we could write Jay's concerns in 5-story letter, in all caps like Yoo's testimony.  Fisher goes on to explain an obvious problem with the notion that the Constitution gives Congress decision-making power on war and peace only by cutting off funds after the President has initiated war:

The advantage to the President [in Yoo's unilateral executive argument on this point] is striking. Executive wars may persist so long as the President has one-third plus one in a single chamber to prevent Congress from overriding his veto of a funding-cutoff.

This general issue took real form in 1973 when Congress passed legislation to deny funds for the war in Southeast Asia. After President Nixon vetoed the bill, the House effort to override failed on a vote of 241 to 173, or 35 votes short of the necessary two-thirds majority. 119 Cong. Rec. 21778 (1973). A lawsuit filed by Representative Elizabeth Holtzman (D-N.Y.) asked the courts to determine that President Nixon could not engage in combat operations in Cambodia and elsewhere in Indochina in the absence of congressional authorization. District Judge Judd held that Congress had not authorized the bombing of Cambodia. Its inability to override the veto and the subsequent adoption of an August 15 deadline for the bombing could not be taken as an affirmative grant of legislative authority: “It cannot be the rule that the President needs a vote of only one-third plus one of either House in order to conduct a war, but this would be the consequence of holding that Congress must override a Presidential veto in order to terminate hostilities which it has not authorized.” Appellate courts mooted the case because the August 15 compromise resolved the dispute between the two branches.

Alton Frye of the Council on Foreign Relations focused on the benefits of Congressional participation in the decision to go to war:

Congress’s stand on how our nation uses the mighty arsenal at its disposal also bears crucially on America’s standing in the world. Even among our closest allies, American power elicits mixed emotions: awe and fear, respect and anxiety. That should surprise no one. Military and economic capabilities of the magnitude America possesses cannot fail to cause alarm in other countries, however benign our intentions. That alarm is heightened to the degree that American force appears to be too easily deployed. In the eyes of others, no less than of our own citizens, American military action may be seen as most legitimate when it is demonstrably subject to democratic governance. This insight is akin to Justice Jackson’s memorable formulation that the President’s power is at its maximum only when he acts “pursuant to an explicit or implied authorization of Congress.”

Marshaling international coalitions to wage the war on terrorism will depend importantly on giving our allies confidence that American power is guided and restrained by a disciplined relationship between Congress and President. Absent attentive, persistent congressional involvement, public diplomacy in the war on terrorism could lose much of the credibility that arises from the perception of America as a model of representative government.

And lose credibility, the US and the Bush administration certainly have!

Michael Glennon of the Woodrow Wilson International Center for Scholars looks at the 2001 Use of Force resolution that Bush is now claiming gives him authority to conduct warrantless wiretaps:

The central conclusion that emerges from these words—which represent the only substantive provision of this statute—is that all authority that the statute confers is tightly linked to the events of September 11. The statute confers no authority unrelated to those events. The statute authorizes the President to act only against entities that planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. No authority is provided to act against entities that were not involved in those attacks. The closing reference limits rather than expands the authority granted, by specifying the purpose for which that authority must be exercised—“to prevent any future acts of international terrorism against the United States….” No authority is conferred to act for any other purpose, or to act against “nations, organizations or persons” generally. Action is permitted only against “such” nations, organizations or persons, to wit, those involved in the September 11 attacks.

The statute thus cannot serve as a source of authority to use force in prosecuting the war on terrorism against entities other than those involved in the September 11 attacks. To justify use of force under this statute, some nexus must be established between the entity against which action is taken and the September 11 attacks. A recent article co-authored by Deputy Assistant Attorney General John C. Yoo accurately emphasized the narrowness of the authority conferred by S.J.Res. 23. Professor Yoo wrote as follows:

The Joint Resolution’s authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states that cannot be determined to have links to the September 11 attacks.

Glennon also notes of the history of judicial disputes between the President and Congress over war power issues, "The actual record is striking: Congress has never losta war powers dispute with the President before the Supreme Court."

He also is confident that the Framers did not intend to create a unilateral Executive with sole discretion over national security issues:

The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.

Douglas Kmiec of the Catholic University of America endorsed Torture Yoo's Mussolini theory of the American Presidency:

The President is constitutionally authorized as Commander in Chief to introduce troops into hostilities without prior congressional enactment. ... Congress should direct its legislative efforts at determining how best the President can be supported with the people’s resources; not how cleverly the President’s military judgment can be second-guessed or hampered.

... the purpose of a declaration of war is to define the international effect of military actions undertaken by direction of the President.

In the present War, the Congress by joint resolution has confirmed the President’s constitutional authority. That resolution [of 09/18/06], when construed together with the President’s Article II power, is ample and plenary, allowing the President, together with his military, national security and homeland defense advisors, to determine the timing, scope, and appropriateness for military intervention.

Congress’s role is one of material support, not tactical judgment. ... Congress oversteps its constitutionally determined role if it uses monetary conditions to usurp or impede the tactical decisions that only the President can make. ...

... the Constitution does not envision that Congress would determine the deployment of troops or related law enforcement and intelligence personnel – that is for the President.

No doubt Bush and his partisans would find that interpretation amenable.

Jane Stromseth of Georgetown University Law Center gives a more traditional interpretation of Congressional war powers:

... Congress’s post-September 11th authorization of force correctly recognized that both Congress and the President have a vital constitutional role to play in prosecuting the global war on terrorism; that meaningful high-level consultations are essential as the campaign against terrorists with global reach and their state sponsors unfolds; and that additional congressional authorization may be constitutionally required in some situations in the future.

... the power to “declare war” vested in Congress was intended by the Framers to be a power to decide, to make a choice, about whether the United States should go to war; it was not a formalistic power to simply validate that a legal state of war existed. On the contrary, Congress was given the power to determine whether the United States should initiate war in order to ensure that the decision to expose the country to such risks and sacrifices reflected the deliberation and judgment of the legislature – the branch most directly representative of the American people, whose lives and resources will be placed on the line -- and to ensure broad national support for such a course of action. This interpretation is further validated by the Constitution’s grant of authority to Congress to authorize reprisals, or acts of limited war, that could lead to a wider war, which clearly indicated a broader understanding of Congress’s war-commencing role than simply a formal declaration that a state of war existed.

... Congress’s power of purse, though critically important, is not a substitute for congressional authorization of war before it is commenced. The founders understood that the British monarch’s power to go to war was qualified to a substantial degree by the Parliament’s power of the purse and its control over military supplies. In giving Congress the power of the purse, including the power of appropriating money to “raise and support Armies” and to “provide and maintain a navy,” the Constitution continued this important legislative check. But the Constitution did not stop here. The Constitution also gave Congress the power to declare war and authorize reprisals, so that congressional deliberation would occur before war was commenced. Reliance on the power of the purse alone as a check on executive war powers, moreover, can be an overly blunt and sometimes ineffective tool for expressing the will of Congress. Limiting or cutting off funds after forces have already been committed is problematic because it undercuts both troops in the field and America’s credibility with her allies. Restricting funds in advance is often undesirable as well because it can harm the President’s ability to carry out effective diplomacy. In short, as important as Congress’s power of the purse is, it is not a substitute for Congress’s power to authorize war. ...

Constitutionally, the President clearly possesses the power to repel attacks and to forestall imminent attacks against the United States and its armed forces, and to protect Americans in imminent danger abroad. But the decision to go beyond this and commence a war belongs to Congress. Major military action with far-reaching objectives such as regime change is precisely the kind of action that constitutionally should be debated and authorized by Congress in advance.

Ruth Wedgwood of Yale leaned in her testimony toward an expansive theory of Presidential war-making powers, though she clearly is not thinking of anything like the unilateral executive theory claims.  She notes that the 09/18/06 Use of Force Resolution does give the President wide authoirty in going after the perpetrators of the 9/11 attacks.  But it's notable that she understands that in terms of military actions abroad, not in terms of exempting the President from FISA:

In the current situation, Congress has acted wisely to give the President broad authorization for action. In the joint resolution of September 18, 2001, the Congress declared that the horrendous acts of violence against the United States were an “unusual and extraordinary threat” to our national security. Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacksthat occurred on September 11, 2001, or harbored such organizations or persons.” The aim, as Congress noted, is “to preventany future acts of international terrorism against the United States by such nations, organizations or persons.” The central importance of this preventative aim gave Congress good warrant for permitting the President a broad range of action.

The initial strategy has been to oust al Qaeda from its comfortable sanctuary with the Taliban in Afghanistan, and to overthrow the Taliban regime. Denying al Qaeda any safe haven in Afghanistan has disrupted its operations, at least for the moment, and has rescued the civilian population of Afghanistan from the Taliban’s brutal oppression. But Congress’s foresighted resolution also appropriately permits the President to pursue al Qaeda in any other venue where it may set up shop or seek alliances.

Presidential powers (1)

This column gives a pretty decent sketch of the Constitutional issues involved with Bush's illegal spying-on-Americans program in "accessible" language (i.e., not legal gobbledygook): Bush may be in "zone of twilight" by John Aloysius Farrell Denver Post 01/28/06

John Dean puts it better, though inn George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably; Both Claimed That a President May Violate Congress' Laws to Protect National Security Findlaw.com 12/30/05.

One bit of legalese that is unavoidable in this discussion, though, is the "unitary executive theory".  This is a far-right theory of fairly recent origin which has been embraced by the Bush-Cheney administration that argues the President has the power to ignore any law and any provision of the Constitution that he chooses in order to protect national security.  It's not exaggerating to say that this is a prescription for an elective dictatorship.  And it has no basis in Constitutional law, though its advocates point to precedents in individual actions.

Elizabeth de la Vega, a former federal prosecutor, recently wrote (Does the President Really Know Best? TomDispatch.com 01/17/06):

OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?

If you are not raising your hand, you're not alone. As regular readers of Tomdispatch are aware, only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the Unitary Executive Theory of the Presidency. Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included  civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a J.D., defense attorneys, and a U.S. magistrate. The precise question was, "When did you first hear about the Unitary Executive Theory of the Presidency?" Most said, "The past few weeks," but my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.

Al Gore gives an excellent description of this theory ("America's Constitution is in grave danger" Salon 01/17/06):

This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president's powers until the contours of the constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the President's authority when acting as Commander-in-Chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress. President Bush has pushed the implications of this idea to its maximum by continually stressing his role as Commander-in-Chief, invoking it has frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

This effort to rework America's carefully balanced constitutional design into a lopsided structure dominated by an all powerful Executive Branch with a subservient Congress and judiciary is-ironically-accompanied by an effort by the same administration to rework America's foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish dominance in the world.

The common denominator seems to be based on an instinct to intimidate and control. (my emphasis)

Bush has chosen the illegal NSA spying as the issue on which to try to establish this principle. His stance on this was anticipated by Dick Cheney hardline stand to keep the composition and deliberations of his notorious energy advisory group secret.  John Dean has described that case at some length in his book Worse Than Watergate.

In the NSA spying case, Bush is actually coupling his unilateral executive theory with the argument that Congress, by its October 2001 authorization to go after Al Qaeda (Use of Force Act of September 18, 2001, to be more exact) gave Bush statutory authority to ignore the FISA law, which requires warrants for the wiretapping that Bush has ordered done without warrants.

Back in April of 2002, before the invasion of Iraq and before the illegal NSA domestic spying came to (partial) light, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights held hearings on the topic, "Applying the War Powers Resolution to the War on Terrorism." Among other things, the constitutional law experts invited to testify looked at the Use of Military Force Act and what it implied for Presidential powers.  The War Powers Resolution referred to in the hearing title is that of 1973, which remains in force.

I won't try to walk through each set of arguments here.  I'll just mention the contributors with brief quotes from their testimony.

John Yoo, at that time Deputy Assistant Attorney General in the Justice Department's Office of Legal Counsel, also known now as Torture Yoo for his role in facilitating the Bush torture policy, is an advocate of the unilateral executive theory.  Yoo's testimony at the Committee Web site is in all caps.  He laws out the theory here:

UNDER ARTICLE II, SECTION 1 OF THE CONSTITUTION, THE PRESIDENT IS THE LOCUS OF THE ENTIRE “EXECUTIVE POWER” OF THE UNITED STATES AND, THUS, IN THE SUPREME COURT’S WORDS, “THE SOLE ORGAN OF THE FEDERAL GOVERNMENT IN THE FIELD OF INTERNATIONAL RELATIONS.” UNDER ARTICLE II, SECTION 2, HE IS THE “COMMANDER IN CHIEF” OF THE ARMED FORCES OF THE UNITED STATES. THESE TWO PROVISIONS MAKE CLEAR THAT THE PRESIDENT HAS THE CONSTITUTIONAL AUTHORITY TO INTRODUCE U.S. ARMED FORCES INTO HOSTILITIES WHEN APPROPRIATE, WITH OR WITHOUT SPECIFIC CONGRESSIONAL AUTHORIZATION.

NOTABLY, NOTHING IN THE TEXT OF THE CONSTITUTION REQUIRES THE ADVICE AND CONSENT OF THE SENATE, OR THE AUTHORIZATION OF CONGRESS, BEFORE THE PRESIDENT MAY EXERCISE THE EXECUTIVE POWER AND HIS AUTHORITY AS COMMANDER IN CHIEF. BY CONTRAST, ARTICLE II REQUIRES THE PRESIDENT TO SEEK THE ADVICE AND CONSENT OF SENATE BEFORE ENTERING INTO TREATIES OR APPOINTING AMBASSADORS. ARTICLE I, SECTION 10 DENIES STATES THE POWER TO “ENGAGE” IN WAR, EXCEPT WITH CONGRESSIONAL AUTHORIZATION OR IN CASE OF ACTUAL INVASION OR IMMINENT DANGER. ARTICLE III DESCRIBES THE OFFENSE OF TREASON AS THE ACT OF LEVYING WAR AGAINST THE UNITED STATES. MOREOVER, FOUNDING DOCUMENTS PRIOR TO THE U.S. CONSTITUTION, SUCH AS THE SOUTH CAROLINA CONSTITUTION OF 1778, EXPRESSLY PROHIBITED THE EXECUTIVE FROM COMMENCING WAR OR CONCLUDING PEACE WITHOUT LEGISLATIVE APPROVAL. THE FOUNDERS OF THE CONSTITUTION THUS KNEW HOW TO CONSTRAIN THE PRESIDENT’S POWER TO EXERCISE HIS AUTHORITY AS COMMANDER IN CHIEF TO ENGAGE U.S. ARMED FORCES IN HOSTILITIES, AND DECIDED NOT TO DO SO.

OF COURSE, AS THE PRESIDENT HAS THE CONSTITUTIONAL AUTHORITY TO ENGAGE U.S. ARMED FORCES IN HOSTILITIES, CONGRESS HAS A BROAD RANGE OF WAR POWERS AS WELL. CONGRESS HAS THE POWER TO TAX AND TO SPEND. CONGRESS HAS THE POWER TO RAISE AND SUPPORT ARMIES AND TO PROVIDE AND MAINTAIN A NAVY. AND CONGRESS HAS THE POWER TO CALL FORTH THE MILITIA, AND TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE ARMED FORCES. IN OTHER WORDS, ALTHOUGH THE PRESIDENT HAS THE POWER OF THE SWORD, CONGRESS HAS THE POWER OF THE PURSE. AS JAMES MADISON EXPLAINED DURING THE CRITICAL CONSTITUTIONAL RATIFYING CONVENTION OF VIRGINIA, “THE SWORD IS IN THE HANDS OF THE BRITISH KING; THE PURSE IN THE HANDS OF THE PARLIAMENT. IT IS SO IN AMERICA, AS FAR AS ANY ANALOGY CAN EXIST.” THE PRESIDENT IS COMMANDER IN CHIEF, BUT HE COMMANDS ONLY THOSE MILITARY FORCES WHICH CONGRESS HAS PROVIDED.

To put the argument a bit more briefly, Yoo is saying here that the President can go to war any time he wants against any enemy he chooses.  If Congress doesn't like it, they can cut off the funds for it. Yoo goes on to argue that Congress' Constitutional power to "declare" war is nothing more than the power to formally declare that a state of war exists.  Apparently in Yoo's theory, a Congressional declaration of war  has no more legal or Constitutional significance than a resolution to honor Red Skelton for having been an entertaining comedian back in the day.

(Continued in the next post)

Germany and Afghanistan

Germany joined with the other European NATO members to declare the 9/11 attacks on the US to be an attack on the alliance, formally invoking the mutual defense clause of the NATO treaty for the first time in the history of the alliance. Given the alienation of the EU countries from the US since, it will probably be the last time.  It's hard to see how NATO can survive for much longer as a meaningful alliance.

They've all stuck by their commitment to the military effort in Afghanistan until now.  But now that NATO troops are being sent into more dangerous areas than the capital city of Kabul - which is about the only part of the country Hamid Karzai's government actually controls, and that only with substantial NATO troop support - doubts are starting to grow.

The Netherlands have been reluctant to send in a contingent. And now doubts seem to be getting stronger in Germany.  And they have been for a while. See, for instance, this piece from last September: Troops Aren't Answer in Afghanistan by Nina Werkhäuser, Deutsche Welle 09/28/05. She wrote then:

There are many parts of the country where not even the armed soldiers of the NATO-led International Security Assistance Force fear to tread. It is a long and dangerous process to move forward in a country where it's impossible to get an overview of who is in control where.

Taliban supporters, drug barons and local warlords all want to get rid of the foreign troops - a fact they prove with their regular attacks on ISAF and the 20,000 additional US troops stationed in Afghanistan.

The situation in Afghanistan is so complicated that there are in fact two mandates from the German parliament for the soldiers it sends. Two mandates for a country with two faces: the one that was extended Wednesday for security troops and another for the fight against terrorism, that will be up for debate again in November. And it doesn't look like either one of them will be ending soon as the tasks for German troops are piling up.

It's understandable that the European publics would be having serious doubts about the Afghan War at this point. The US, the NATO member who was attacked on 9/11, is pulling out troops, even though our alleged public enemy #1 Osama bin Laden has been caught or killed yet. The situation has settled back into a pattern of local warlord rule.  And without a much larger force, they can hardly expect to run a successful counterinsurgency operation across the entire country.

The opportunity to put Afghanistan on a much more construtive path was much greater immediately after the outster of the odious Taliban regime.  But, as we Americans are learning once again the hard way in Iraq, other countries can be very resistant to receiving the blessing of Western civilization through wars of occupation.  Given Afghanistan's history, it is no surprise than Europeans would be hesitant to undertake such a task there.

Europe is the main recipient of the large amounts of opium and heroin now pouring out of Afghanistan.  So they have an interest in reducing that.  But will a military-based "war on drugs" do the job?  Look at the US in Colombia.  Not an encouraging precedent.

The European commitment to Afghanistan right now seems to me to be mainly a way to show some kind of continued military commitment to the United States.  But at some point, democratic publics are going to balk at sending their soldiers to war as a diplomatic sop to an unpopular ally.

More comments and links on the SOTU

After hearing that the Joint Chiefs of Staff have now decided to formally address their warlordly displeasure at civilian cartoonists who publish a cartoon critical of Rummy the Infallible in a civilian newspaper, I feel like just writing a long post about how they should mind their own [Cheney]ing business.  Censoring political cartoons ain't part of it.  Hey, aren't you losing a war in Mesopotamia or somewhere that you maybe ought to be paying more attention to than to the Great Rummy's public image?

Well, it goes along with the ejection of Cindy Sheehan and a conservative Republican who were thought to have inappropriate shirts that might embarass our Dear Leader Bush last night, I suppose.

Maybe the Bush team is going on the theory on which they keep insisting that The Terrorists "hate us for our freedoms".  So if we get rid of our freedoms, The Terrorists won't hate us any more, now will they?

But for now, I was going to say more about Tuesday evening's SOTU.

I'm very skeptical about what Bush will actually do on promoting "energy independence".  Promoting nuclear power is one thing he mentioned, which presents some very challenging side-effects of its own. And conservation is clearly not part of Bush's picture.

His vapid declarations that we will fight on to victory in Iraq sound more strange every time he makes them. Especially now that we know from recent news reports that the US is actively negotiating with the Sunni resistance groups for some kind of settlement.  That's got the Shi'a-dominated Iraqi government we installed pretty upset.  An outright break with the current Iraqi regime is by no means unthinkable.  The diplomatic historian Gareth Porter, looking at the latest developments, wrote a couple of days ago, "The worst crises for U.S. policy in Iraq are still to come."

Then Bush repeated the current Republican Party line of demonizing critics of the war by calling such criticism "defeatism".  It's Bush whose plans for victory in Iraq have failed so that it will take considerably imagination to call the eventual outcome "victory".

And then in tendentiously defending his warrantless domestic spying program, he asserted his claim (in legal code) that the President can break any law he chooses as long as he says he's doing so to protect national security.  This is, so far as anything I've ever seen, a truly unprecedented claim of broad Presidential powers.  Actually, it's a claim of unlimited Presidential power.

Congress should stop worrying about ritual clapping at tired platitudes and more about getting the US out of the Iraq War and putting a stop to the President's open defiance of the law.

And shouldn't Congress start asking some hard questions about stuff like this.  Bush:

Abroad, our nation is committed to an historic, long-term goal - we seek the end of tyranny in our world.  Some dismiss that goal as misguided idealism.  In reality, the future security of America depends on it.  On September the 11th, 2001, we found that problems originating in a failed and oppressive state 7,000 miles away could bring murder and destruction to our country.  Dictatorships shelter terrorists, and feed resentment and radicalism, and seek weapons of mass destruction.  Democracies replace resentment with hope, respect the rights of their citizens and their neighbors, and join the fight against terror.  Every step toward freedom in the world makes our country safer - so we will act boldly in freedom's cause.

Hey, I like gushy platitudes, too.  They are especially appropriate if you're having a couple of drinks and watching Second World War documentaries on the History Channel late at night.  Just what does it mean in terms of money to be spent and lives to be lost in war to say that America will "act boldly" to bring "the end of tyranny in our world"?  I'm guessing that most Americans would be satisfied if our cartoon-censoring generals could prevent a few guys armed with box-cutters from slamming planes into tall buildings in New York - oh, and their own world headquarters at the Pentagon, too.

Then maybe a couple of centuries from now the country can take up wars of liberation again to change all the regimes in the world we might not particularly admire.

And no one expects the SOTU to be some detailed analytical discourse on problems.  But this kind of Polyanna picture of things, which surerly even most Republican members of Congress must know at some level is bogus, is just not a meaningful description of what's happening:

We remain on the offensive in Afghanistan, where a fine President and a National Assembly are fighting terror while building the institutions of a new democracy.  We're on the offensive in Iraq, with a clear plan for victory.  First, we're helping Iraqis build an inclusive government, so that old resentments will be eased and the insurgency will be marginalized.

Second, we're continuing reconstruction efforts, and helping the Iraqi government to fight corruption and build a modern economy, so all Iraqis can experience the benefits of freedom.  And, third, we're striking terrorist targets while we train Iraqi forces that are increasingly capable of defeating the enemy.  Iraqis are showing their courage every day, and we are proud to be their allies in the cause of freedom.

And did anyone else think it was strange to hear Bush call for the "line-item veto"?  That was one of the features of Newt Gingrinch's Contract for America that the Republican House elected in 1994 actually followed through and enacted.  And the Supreme Court declared it unconstitutional.  Does Bush know something from his private conversations with Roberts and Alito that he isn't sharing with us?

Robert Dreyfuss harshes on the Democrats at his blog for trying to sidestep the Iraq War on Tuesday: Dems AWOL on Iraq 02/01/06.

He writes:

A one-sentence quote from today’s New York Times says it all. Referring to Senator Harry Reid of Nevada and Representative Nancy Pelosi of California, who spoke in advance of Bush’s speech, the Times noted: "The Congressional leaders steered clear of the Iraq war in their remarks before the speech."

That is, they "steered clear" of the central focus on the Bush administration’s tenure and the heart of Bush’s speech last night.

He goes on to say the Democrats need their own "solution for Iraq".  I'm not sure to what extent that is true.  I would much prefer to see them take a position of getting out soonerthan later. But what's the point of offering up speculative proposals about possible negotiated settlements and the like when Bush is still talking about fighting on to Victory, whatever that may mean in FOXLand?

Bill Adair of the St. Petersburg Times is very skeptical about Bush's talk on developing energy independence in Nation is too hungry for oil 02/01/06.

But talk is cheap. Will Bush put the force of his presidency behind the energy proposals? He has proven he can be effective on issues he cares deeply about - Iraq, tax cuts, the war on terrorism. He has been less effective on domestic initiatives that don't mesh easily with his fundamental beliefs in freedom, cutting taxes and reducing regulation.

Remember his 2004 proposal to go to the moon and Mars? He has said little about it since then.

His comments about oil addiction may ring hollow with many Americans. Bush not only comes from an oil family (his White House bio boasts that he owned an oil and gas company), but his administration has boosted the oil industry at every turn. With Exxon reporting a $36-billion profit for last year, many people will wonder if he sincerely wants to break an addiction that puts food on the Bush dinner table.

His administration has never been gung-ho about conserving energy. When fuel prices skyrocketed last year, Bush raised the White House thermostats but offered only tepid support for conservation. In 2001, Vice President Dick Cheney said, "Conservation may be a sign of personal virtue, but it cannot be the basis of a sound energy policy."

That's same paper's editorial on the speech, State of the Union 02/01/06, said:

In laying out a modest domestic agenda, Bush called for the development of alternative energy sources to lessen our "addiction" to foreign oil. But his own addiction to tax cuts is unbroken. The president again called on Congress to make his first-term tax cuts permanent. So much for deficit reduction and fiscal responsibility.

Health care ranks as the top priority of most Americans, according to the latest Wall Street Journal/NBC News poll. Yet Bush had little to offer on that issue except tax incentives for individual medical savings accounts that would be beyond the means of many of the 46-million uninsured Americans. There is no money for big second-term initiatives because the war, homeland security, the Katrina disaster, an expensive Medicare drug benefit and tax cuts have left the government drowning in red ink and the president and the Congress with little room to maneuver on spending.  ...

The president who stood before Congress Tuesday night was the weakest sixth-year chief executive (his approval rating is hovering around 40 percent) since Richard Nixon at the height of the Watergate scandal. Congressional Republicans are no longer cowed by Bush and are breaking ranks with the White House on issues such as immigration and deficit spending.

Americans want not only a change of course but a change in the way Bush governs - less partisan, more realistic, less arrogant.

Yeah, I'd like to date Nastassja Kinski, too.  But even aside from what my wife would have to say about it, it just ain't gonna happen.

Peter Wallsten and Maura Reynolds in the Los Angeles Times argue that Bush Stretches to Defend Surveillance: The president's justification for his spy program has disputable roots, as do some of the facts and figures he put forth in his speech 02/01/06:

Defending the surveillance program as crucial in a time of war, Bush said that "previous presidents have used the same constitutional authority" that he did. "And," he added, "federal courts have approved the use of that authority."

Bush did not name names, but was apparently reiterating the argument offered earlier this month by Atty. Gen. Alberto R. Gonzales, who invoked Presidents Lincoln, Wilson and Franklin D. Roosevelt for their use of executive authority.

However, warrantless surveillance within the United States for national security purposes was struck down by the U.S. Supreme Court in 1972 — long after Lincoln, Wilson and Roosevelt stopped issuing orders. That led to the 1978 passage of the Foreign Intelligence Surveillance Act that Bush essentially bypassed in authorizing the program after the Sept. 11 attacks.

Since the surveillance law was enacted, establishing secret courts to approve surveillance, "the Supreme Court has not touched this issue in the area of national security," said William Banks, a national security expert at Syracuse Law School.

"He might be speaking in the broadest possible sense about the president exercising his authority as commander-in-chief to conduct a war, which of course federal courts have upheld since the beginning of the nation," Banks said. "If he was talking more particularly about the use of warrantless surveillance, then he is wrong."

That's a reporter's way of saying, "Bush was just lying again".

Next to the war in Iraq that Bush initiated in defiance of the Congressional war resolution of October 2002 and of well-established international law, Bush's claim to unlimited discretion to disobey laws under the bogus "unitary executive theory" is the most serious Constitutional issue facing the country right now.  And it's on the illegal program to spy on Americans without warrants that he's making the fight to establish that principle.

Louisiana's elected officials - amazingly, even including their one Republican Senator! - weren't so impressed with the SOTU - Bush doesn't get it, Landrieu says by Bruce Alpert New Orleans Times-Picayune 02/01/06:

Sen. Mary Landrieu, D-La., said she doesn't sense that the president grasps the magnitude of the problems on the Gulf Coast by devoting only one short paragraph to Katrina recovery.

"Unfortunately, we didn't get what we were hoping for -- or expecting, but we are going to press on because we need this president to be our champion, not our critic," Landrieu said. ...

Sen. David Vitter, R-La., said that he, too, wished Bush had devoted more time to Hurricane Katrina.

"I would say it was a very strong and powerful speech, if only I could black out all the problems facing Louisiana and the Gulf Coast," Vitter said. "I was very disappointed at how small a part those national challenges -- and I think they are national challenges -- were given in the speech."

Dick Polman of the Philadelphia Inquirer found the SOTU fact-challenged in more ways than one.  Keeping pesky facts out of it 02/01/06:

Bush defended his warrantless-surveillance program, contending that "appropriate members of Congress have been kept informed." But a legal analysis by the nonpartisan Congressional Research Service has faulted Bush for not seeking to inform the full membership of the House and Senate intelligence committees - thereby acting in a manner "inconsistent with the law."

Bush said that the same kind of program might have prevented 9/11; as he put it: "We now know that two of the hijackers in the United States placed telephone calls to al-Qaeda operatives overseas... . We did not know about their plans until it was too late." But the bipartisan 9/11 commission concluded in its report that intelligence officials had amassed plenty of information on those future hijackers, and had failed to act only because of turf wars and bureaucratic inertia. ...

Bush lauded his reconstruction program for New Orleans ("a hopeful society comes to the aid of fellow citizens") but didn't mention that the White House response to Katrina was facing multiple probes. A House Republican investigator has already cited "a disturbing inability by the White House to de-conflict and analyze information - and that had consequences." Meanwhile, the nonpartisan Government Accountability Office today is releasing a report that faults Bush's team for a failed leadership, one which "serves to underscore the immaturity of and weaknesses relating to the current national response framework."

Reaction by Mississippi's members of Congress understandably focused on Gulf Coast recovery. The following quotes give a good glimpse of the drawbacks of the common assumption among Mississippi voters that electing Republicans to Congress will somehow give the state extra clout with a Republican President.  The Republicans quoted here sure sound like they are muting their demands for more support and faster action on Coast reconstruction out of Party loyalty - Bush offers few aid details:Hurricane recovery mentioned only briefly near end of speech Jackson Clarion-Ledger 02/01/06:

... 4th District Rep. Gene Taylor, D-Miss., was critical of how Bush handled the Katrina issue. "As a south Mississippian, I was disappointed about how little of his hour-long speech was devoted to Hurricane Katrina and its effects on the people of south Mississippi," Taylor said.

"On behalf of the 10,000 people who are still waiting for a (Federal Emergency Management Agency) trailer, I was hoping he would address what deficiencies could be fixed, but I didn't hear that." ...

Like many Republicans, 3rd District Rep. Chip Pickering, R-Miss., said he liked Bush's message.

Pickering said the president "described an agenda of energy security, free market health care, fiscal discipline, economic expansion, national security and a commitment to policies to help not only us in Mississippi rebuilding from Hurricane Katrina but those across the country."

First District Rep. Roger Wicker, R-Miss., said the president had "the right message for the economy" by saying he wanted to keep taxes low and American industries competitive. But Wicker also said Coast lawmakers were at the forefront of recovery efforts, not the White House.

From an editorial in the New Oleans weekly The Gambit Wrong-headed Decision: We challenge the White House to propose a detailed, specific plan for averting a housing and mortgage crisis in Louisiana 01/31/06 on an important feature of the current debate over rebuilding New Orleans, the Baker Bill (unfortunately this doesn't appear to be a permalink):

Everyone agrees that after flood protection, housing is one of the top priorities of the recovery. The Baker Bill, introduced by U.S. Rep. Richard Baker of Baton Rouge, would establish an entity called the Louisiana Recovery Corporation as a means of providing financial stability to property owners as well as lenders. The bill would authorize the LRC to sell federal bonds and use the revenue to buy flood-damaged homes and pay off mortgages. Homeowners' participation would be strictly voluntary, and all LRC aid would be capped at 60 percent of pre-storm equity, minus insurance proceeds. The measure passed a House committee in December, but stalled just before Christmas. Congressman Baker was in the process of renewing his push for the bill when the president pulled the rug out from under it. Worse yet, the president has offered no realistic alternatives.

In opposing the Baker Bill, the president suggested that Louisiana look to $6.2 billion in Community Development Block Grants as a source of housing money, and then apply to the feds for specific grants to address other areas of need. That is wholly unrealistic for several reasons. First, while that CDBG program is are very flexible, some of that money was already going to be used for housing needs. More important, the grant's $6.2 billion total is nowhere near enough to take care of the more than 200,000 homes damaged or destroyed by Katrina and Rita. It would provide, with no allowance for administrative costs, only $31,000 per home -- and that's supposed to give property owners some of their lost equity AND retire the mortgage. Gov. Kathleen Blanco says the CDBG monies would take care of only one in 10 adversely affected property owners in Louisiana.

Bush is still doing a heckuva job on the Katrina aftermath. As we knew he would.

Los Angeles Mayor Antonio Villaraigosa's Spanish-language response for the Democrats was very good.  Definitely better than Tim Kaine's lackluster English response.  There are Spanish and English transcripts at the Party's Democrats.org site.