[NYTr] Does Congress Have Authority to End the War?

[nytr at olm.blythe-systems.com]

sent by Political Affairs - Jul 25, 2007
http://www.politicalaffairs.net


Does Congress Have Authority to End the War?

By Joel Wendland

The question of how the Constitution defines Congress' power to tell
the president how to deploy military forces is often raised in current 
debates about how and when to end the war in Iraq.

Usually, members of Congress, the administration, and pundits who 
support Bush's "stay-the-course" policy use the question to attack 
antiwar opponents for undermining the president's constitutional power 
as commander-in-chief and for threatening the security of the country. 
Several Republican Senators repeated this mantra in the recent debate 
over troop withdrawal from Iraq.

But what are the bases of the argument? Noah Feldman and Samuel 
Issacharoff are constitutional scholars who are critical of Bush's 
handling of the war but who have argued, in an article published last 
March in Slate <http://www.slate.com/id/2161172/>, that indeed Congress 
has no authority to force the redeployment of troops. (Feldman's
already budding career received a boost when, as a 32-year old, Bush
appointed him to aid in writing Iraq's new constitution in 2003. His
experience in Iraq makes his criticisms of Bush's handling of the
occupation especially pointed.)

As I am no Constitutional scholar, I gladly defer to Feldman and 
Issacharoff on Constitutional matters. But they make a rather 
significant admission in the opening of the article: "The Constitution 
gives Congress the power to declare wars, fund them, and oversee the
way they are fought. Yet the Constitution /never says exactly how these 
powers are to be reconciled with the president's authority as commander 
in chief/" (emphasis added).

Further, because no court decisions have specified or delineated the 
powers afforded to Congress and the president on these matters, Feldman 
and Issacharoff confess, historical precedent must be the guide. For 
this reason, Feldman and Issacharoff say they will rely on historical 
examples to judge whether or not Congress has such authority. But then 
Feldman and Issacharoff admit that "[h]istorical practice cannot always 
be translated into practical guidance."

No matter. Without any specific Constitutional basis and having
undercut their own appeal to history, Feldman and Issacharoff proceed
by insisting that no historical example can be produced to show that 
Congress ever claimed the right to force the president to make
decisions on troop redeployment, thereby limiting the authority of the
current Congress (and presumably all US Congresses for all time).

They wind up producing an argument based on opinion and selective 
historical data rather than legal facts that simply repeats rather than 
proves the premise with which they launch their article: "war must be 
conducted under the president's direction, not run by committee."

For these reasons, one needn't be a legal scholar to refute Feldman's 
and Issacharoff's positions. Indeed, Feldman and Issacharoff seem to 
admit that the evidence for their conclusion lie outside the purview of 
their particular expertise.

Iraq is Like the US Civil War?

In addition to historical examples dating to the 1790s and the early 
1800s, Issacharoff repeated one particular example in an interview with 
New York Times in March 
http://www.nytimes.com/2007/03/04/weekinreview/04rosen.html
to prove that Congress has refused the authority to order troop 
redeployment: the Civil War. Issacharoff noted that Congress wanted to 
influence many of President Abraham Lincoln's military decisions but 
refrained from doing so on the issue of troop deployments.

“[Congressional interference] bordered on harassment," the Times quoted 
Issacharoff as saying, "and Lincoln resisted some of the excesses, but 
even then, Congress never tried to issue orders about the deployment of 
troops.”

Armed with such historical data, Feldman and Issacharoff insist
Congress by declining to expand its military authority to include troop 
deployments, it thus set a precedent for what the current Congress 
should or should not do.

But Issacharoff's example is problematic at best. Yes the Civil War was 
a war, but is it comparable to the invasion and occupation of Iraq?

Not quite. The Civil War was a domestic conflict started by a group of 
rebels who sought to destroy the United States in order to preserve the 
abominable institution of racial slavery from which they derived huge 
amounts of wealth. It was not a war based on lies. It was not an 
invasion of another country; it was the suppression of an internal 
rebellion.

Further, Congress did not seek to end the war until unconditional 
victory. The public, though it had become weary, continued to support 
the war and its cause, returning congressional Republicans to power 
throughout. Specific aspects of Lincoln's management of the war were 
openly criticized, but doubts about the necessity of preserving the 
country by defeating the rebels never gained serious momentum.

Additionally, Lincoln's party controlled Congress and lacked
significant opposition on the strategic aims of the war. And, as
the Times article points out, congressional maneuvers had more to do
with forcing a more engaged and active military prosecution of the war.

Congressional Republicans' refusal to do more than "harass" Lincoln was 
motivated more by partisan support for their president, patriotic 
sentiments about preserving the country, and ideological opposition to 
the goals of the rebellion (including slavery) than an intention to 
define congressional war powers.

In the case of the Iraq war, the opposite is true. The debate over
troop redeployment out of Iraq is not just about this or that tactic in 
support of the overall strategic goal. The debate is about the need to 
/end/ the war and the occupation, a goal supported by the vast majority 
of the public. Public opposition to the war resulted in the loss of the 
pro-war party's control of Congress last November, and most observers 
interpret the election as a public mandate for Congress to end the war. 
Also, in contrast with the Civil War, the continuing existence of our 
country is not seriously linked to the continued occupation of Iraq, 
except by the war's most extreme supporters.

So Feldman's and Issacharoff's comparison is something of a stretch.
But if Feldman's and Issacharoff's version of the Civil War must be
accepted as an example of congressional timidity, why did they use only
selective examples of congressional action from that era?

Notably, Congress took an aggressive role in Reconstruction. Begun 
during the war itself, Reconstruction policy involved the deployment of 
military forces to occupy and govern the South even after the official 
cessation of hostilities and the assassination of Lincoln. 

Congressionally mandated military force was needed to maintain federal 
authority, suppress violence carried out by terrorist organizations
like the KKK, and to protect the lives, rights, and property of African 
Americans.

In fact, Congress impeached and nearly forced Lincoln's successor, 
Andrew Johnson, out of office in order to stop him from using his 
position as commander-in-chief to withdraw military forces and obstruct 
Congress' Reconstruction agenda. (See, for example, Eric Foner's 
Reconstruction.)

Twentieth-century examples are also readily available. In her speech 
following the first congressional vote to withdraw troops from Iraq
last March, House Speaker Nancy Pelosi recalled that Republicans who 
controlled Congress in the late 1990s had attempted to pass withdrawal 
resolutions aimed at forcing President Clinton to bring the troops home 
from the conflict in the former Yugoslavian states – some of the very 
same people who now deny congressional authority to do so against
Bush's war.

Congress also tried to pressure President Truman to redeploy troops out 
of Korea when it became clear that the conflict had been fought to a 
stalemate. Public and congressional opposition to the war had grown so 
strong, that Dwight Eisenhower won election in 1952 in no small part 
based on his promise to go to Korea to find a political resolution. 
Truman's defiance of Congress was an attempt to hold out for victory, 
but clearly the delay in implementing a political solution cost 
thousands of lives needlessly.

The Russian Invasion

But successful Republican efforts in Congress to force the partial end 
of the US occupation of Russia after World War I is also a useful, if 
mostly forgotten, example of the legislative branch's claim to the 
authority to force the president to redeploy troops. Here's what
happened.

In the late summer of 1918, President Woodrow Wilson ordered several 
thousand US troops to Russia ostensibly to prevent Allied ammunition 
stores sent there prior to the Bolshevik revolution from falling into 
the hands of the Soviets.

Before the overthrow of the Tsarist autocracy in early 1917, the Allies 
had relied on the Tsar to maintain the second front in the east to
split Germany's powerful military forces. But mismanagement of the war
leading to the unnecessary deaths of millions of Russian troops and
drastic conditions on the home front in what many Russians considered
to be an unnecessary and unjust war fueled the revolt against the Tsar.

The regime that replaced the autocratic Tsar accepted bribes in the
form of tens of millions of dollars in new loan guarantees by Western
banks and governments to keep the war going. The war dragged on, and
tons of Allied materiel was shipped to Russia to keep the eastern front
open.

Antiwar sentiments in the Russian population did not disappear. Many 
more deaths, economic collapse, and famine fueled a second revolution 
headed by the Communists in late 1917. Lenin, the Bolsheviks, and the 
Soviets took power with the promise of land, peace, and bread.

Representatives of the new Soviet government sought talks with the 
Allied governments, including the Wilson administration, over the
return of the supplies, continuing trade relationships, and working out
loan repayments. Their overtures were ignored.

Instead, Wilson ordered US forces to join an Allied invasion of the 
Soviet Union with tens of thousands of troops from Britain, France, and 
eventually from the newly formed Czechoslovakia. The US troops were 
placed under British command and sent to Archangel in northwestern 
Russia and Vladivostok in the far east. And they were promptly
forgotten.

Although Wilson told Congress and the public that the invasion was 
intended only to guard Allied property, the soldiers at Archangel 
remained in the USSR for nearly a year and fought in many battles 
against Soviet troops. In fact, they were ordered to join military 
operations all over northern Russia as part of the ongoing civil war. 
They assisted anti-Soviet military forces intent on overthrowing Soviet 
authority long after the Armistice with Germany was signed. Hundreds of 
US troops died, were wounded, or were evacuated due to illnesses.

Just days before the Armistice, Wilson's Democratic Party lost control 
of Congress (in no small part due to his failure to keep his promise to 
stay out of the war). Immediately, Republican Representatives-elect and 
Senators-elect began to demand the withdrawal of US troops from Europe, 
despite the fact that a treaty had not been signed and the war had not 
officially ended.

In this chorus of demands for troop withdrawal, Sen. Hiram Johnson 
(R-CA), a staunch anti-Wilsonian and America-firster launched a
campaign in Congress to force the end of the occupation of Russia.
Johnson introduced a resolution in December 1918 demanding an
accounting of the Russian occupation from the Wilson administration's
as well as a statement of its goals and rationale. Johnson accompanied
the resolution with a fiery speech on the Senate floor that January
demanding the withdrawal of US troops from Russia.

He saw his resolution as a first step in a campaign within the Senate
to convince lawmakers to use congressional power to force the
withdrawal of US troops from Russia.

Johnson also joined with a movement of hundreds of military families of 
troops stationed in Russia to expose the harsh conditions the troops 
faced, to rail against the use of troops against a sovereign government 
with whom Congress had not officially declared war, and for the lack of 
a clear mission.

Military families revealed that their loved ones lacked adequate 
equipment to keep them safe in the harsh Russian winter. They were not 
getting enough food, clothing, and shelter. News about loved ones stuck 
in Russia was sparse as shipments from northern Russia were limited by 
the sub-freezing temperatures. Many were dying both in battles and from 
the elements. On the Senate floor, Johnson even condemned the
atrocities US troops were ordered to commit against civilians and
civilian authorities.

That February, Johnson delivered to the Senate over 100,000 signatures 
on petitions gathered by the military families calling for an end to
the occupation of Russia. Johnson accused Wilson of hypocrisy for
claiming to support democracy and the right of self-determination of
all nations, while ordering the invasion of Russia and stubbornly
refusing to bring the troops home.

Meanwhile the Wilson administration continued to insist that conditions 
were good for the troops and that their mission was merely to guard 
ammunition stores. Wilson's secretary of war said, more or less, that 
they went to Russia with what they had and that the troops were just 
going to have to tough it out. Mostly, though, the Wilson
administration just didn't want the facts about the Russian occupation
to go public.

When Johnson's anti-occupation resolution reached the floor for debate, 
Senators did not ruminate over whether Congress had the authority to 
force the president to withdraw troops, or that such an action 
undermined Wilson's commander-in-chief authority.

The Senators focused almost entirely on the perceived Bolshevik threat, 
specifically on the imagined looming Communist takeover of the US as 
suggested by labor unrest and growing public criticism of Wilson's 
policies, which had been outlawed as sedition, espionage, and/or
treason during the war.

In one form or another, Senators who supported Wilson's invasion of 
Russia argued that the troops were needed there to prevent the 
Bolsheviks from destroying our way of life over here. Some Senators 
called for expanding the forces in Russia. Others who opposed the 
occupation fell silent out of fear of being perceived as pro-Communist.

After heated and mostly irrational debate (including ravings about 
immigrant hordes, Soviet and German cash, and Manhattan Jews), the vote 
on the resolution was a tie. Wilson's vice president, of course, broke 
the tie.

But Congress continued to press the issue, and to avoid further erosion 
of congressional support for other policies, Wilson backed down. He set 
the date of June 1919 to start a phased withdrawal of US troops from 
Russia.

Troop withdrawal orders were sent to northern Russia by April 1919, and 
by the time the frozen harbors thawed sufficiently in June, two-hirds
of the troops stationed at Archangel were redeployed to France,
arriving in the US by July. More than 2,000 remained, however, and,
unfortunately, the several thousand troops in the far east stayed and
fought Soviet forces for another year with only more deaths and wounds
to show for the effort. (For only the latest account of the
congressional reaction to the Russian occupation, see Ann Hagedorn's
"Savage Peace"
http://www.booksamillion.com/ncom/books?id=3850875311328&amp;pid=0743243714). 

Authority by Default

Contrary to Feldman's and Issacharoff's claim, history does provide 
examples of how Congress actively sought to force the president to
order troop redeployment, punished presidents for failing to take
specific military actions, redefined the strategic aims of a conflict,
or sought control over specific military maneuvers.

One part of Feldman's and Issacharoff's conclusion is worth additional 
comment. While ordering partial troop redeployments lies outside of 
congressional authority, they do argue that Congress does have
authority to order the complete withdrawal of military forces and thus
end a military action. To this interesting twist, however, they add the 
nonsensical condition that such a step should be based only on the 
president's judgment of the necessity of continuing or ending a 
particular military adventure or occupation, no matter how
"incompetent" or "disastrous" his or her leadership, orders, or actions
might be, effectively rendering Congress' authority to end a war
inoperative.

Their admitted inability to cite actual Constitutional language or
court interpretations combined with their careful avoidance of contrary 
historical examples sinks the Feldman and Issacharoff thesis.

But the growing demand by 7 in 10 Americans 
http://www.usatoday.com/news/washington/2007-07-09-bush-poll_N.htm 
to redeploy most of the troops out of Iraq by April 2008 and the belief 
of more than 6 in 10 Americans 
http://www.truthout.org/docs_2006/071907T.shtml that war funding 
should be tied to a timetable for withdrawal puts the nail in its
coffin.

In a democratic society, allowing war (or any serious policy question) 
to be determined solely by historical precedent, elite scholars, or the 
president makes as much sense as allowing hysteria and untruths to hold 
sway. And because President Bush refuses to accept the overwhelming
call to end the war, it is the responsibility of Congress to act
swiftly.

[Joel Wendland can be reached at jwendland at politicalaffairs.net ]