Roundup: Historian's Take
This is where we place excerpts by historians writing about the news. On occasion this page also includes political scientists, economists, and law professors who write about history. We may from time to time even include English profs.
SOURCE: Chronicle of Higher Education (1-31-07)
Do conservatives write better than leftists?
Why I Turned Right: Leading Baby Boom Conservatives Chronicle Their Political Journeys (Threshold Editions), to be published this month, is a collection of essays by a dozen conservatives on their political peregrinations from left to right. Almost without exception, each essay is lucid and articulate. Would it be possible to assemble a countercollection by leftists that would be equally limpid? Unlikely. Why?
Several answers suggest themselves. Leftists largely inhabit the academy, and the professoriate does not prize elegant writing. On the contrary, it distrusts clear prose as superficial. Oddly, English and literature professors led the way. A trip to Paris, a bottle of wine, a Foucaultian appetizer, and a Derridaian main dish, and they became convinced that incomprehensibility equals profundity.
Over the years the menu has changed, but the damage has been done. Leftist scholars continue to believe that clotted language confirms insight; to write well receives little regard. Consider the ringing conclusion of a recent manifesto of the radical intelligentsia, Eric Lott's The Disappearing Liberal Intellectual: "If patriotism itself is rethought as 'plural, serial, contextual and mobile,' in Apparduari's words, then postnationalist collectives of labor and desire might earn the devotion they deserve." Lott — yes, an English professor — crafted that sentence.
Compared to that, much conservative writing has a deft, light touch. Only one author in this collection is an academic; almost all are affiliated with conservative think tanks, which encourage readable prose for a reading public. Many are ex-academics, however, and abhor the university. Stanley Kurtz, a contributing editor of National Review Online, breathed freely once he "escaped" from the campus. "For the first time in years, I could speak my mind." For two decades at least, going back to Allan Bloom's The Closing of the American Mind, conservatives have effectively savaged the academic world. That polemical zeal marks this volume as well, especially Heather Mac Donald's reflections on studying literature at Yale with Paul de Man ("a story of a nightmare from which I did, at last, awake"). Indeed, their academic experience drove many of the contributors into a conservative orbit. Kurtz believes that university "one-sidedness and extremism" produced today's conservatives.
Could this be so? The classic anthology of political conversion, The God That Failed (1949), responded to sterner stuff. After joining the Communist Party, partaking of the anti-Nazi resistance, witnessing the Spanish Civil War, and finding himself interned in France, Arthur Koestler moved to the right. Today's more timorous souls run home when they see a Che Guevara T-shirt or catch a little feminist claptrap. Peter Berkowitz, of the Hoover Institution, underlines the significance of a "collective dirty look" directed at a conservative professor during a Harvard gathering. Oh my! Mac Donald tells of de Man's star graduate assistant, a true believer, who responded with "a strangled laugh" to the heretical comment that people could actually communicate. Kurtz draws the conclusion: "The food, clothing, and music in elite universities were a whole lot nicer than in the Soviet Union, but the intellectual setting was barely better." That dissent spelled incarceration in the USSR and a cold shoulder in the U.S. academy does not register on these specialists in freedom....
Posted on: Wednesday, January 31, 2007 - 22:17
SOURCE: New Republic (1-29-07)
The senator had eight minutes in the limelight to challenge Bush's version of the"State of the Union." After his November election, conventional wisdom pigeon-holed Webb as one of the new breed of conservative Democrats. Webb's reply clearly demonstrated that he belongs, as Paul Wellstone liked to say, to the Democratic wing of the party, not to the idea-less, accommodating Clinton-Lieberman-DLC group.
"Populism" now represents a convenient shorthand, signifying very little. But Webb fits comfortably into traditional historical patterns of populism, focusing on the priority of resolving America's domestic problems, limiting the influence and power of corporate America, and defusing involvements abroad that have come largely to fulfill the needs of that self-same corporate America.
His speech followed lines he has set down for more than four years. He has challenged every Bush argument and rationale for war in Iraq since 2002. Speaking at the Naval Postgraduate School that year, he warned against any occupation of Iraq."Do you really want the United States on the ground in that region for a generation?" he asked."I don't think Iraq is that much of a threat." During his senatorial campaign, he stepped up his attack, labeling the war"a complete failure," and forthrightly called for withdrawal. And all this in Bush Country.
Responding to the president, Webb's muscular rhetoric contrasted sharply with Democratic behavior of the past five years. Democrats passively succumbed to the president's politics of fear. They are paralyzed for fear of appearing disloyal, weak, and unduly divisive. They are intimidated by a deceitful president who manipulates an ill-informed electorate. They wither in terror before the preemptive assertions of a"unitary executive," a concept wholly unknown, indeed alien, to the American Constitution. They meekly accept a bloated security state, replete with denials of the rule of law. In short, they offer only a pale imitation of an Opposition.
We have an anomaly. Statistical and anecdotal evidence clearly indicate national dissatisfaction with the Iraqi adventure. Yet the Opposition and the media tread lightly against the president. A new Democratic Congress holds its collective breath in opposing the president's misguided policies abroad and his catalog of abuses of power at home. They speak only of symbolic action, and their discomfort is obvious. Well, they can go to settled law and reaffirm the War Powers Act, undoubtedly goading the Republican senators into a filibuster.
While the Democrats search for their meaning, Bush and his Consort boldly advance breathtaking expansions of their war, with total disdain for Congress and the Opposition. They had a pliant Republican-Congress until this year; obviously they see no change. And so far, neither do we. But Senator Webb has given the Democrats a model for change. Let us hope they have the courage to follow.
We had the usual spin following Webb's talk. The party, we were told, had prepared a speech for him, but he allegedly tore it up and wrote his own. Undoubtedly.
Posted on: Wednesday, January 31, 2007 - 12:10
SOURCE: http://www.foreignpolicy.com (1-30-07)
The cold, hard truth about the Bush administration’s strategy of “surging” additional U.S. forces into Iraq is that it could work. Insurgencies are rarely as strong or successful as the public has come to believe. Iraq’s various insurgent groups have succeeded in creating a lot of chaos. But they’re likely not strong enough to succeed in the long term. Sending more American troops into Iraq with the aim of pacifying Baghdad could provide a foundation for their ultimate defeat, but only if the United States does not repeat its previous mistakes.
Myths about invincible guerrillas and insurgents are a direct result of America’s collective misunderstanding of its defeat in South Vietnam. This loss is generally credited to the brilliance and military virtues of the pajama-clad Vietcong. The Vietnamese may have been tough and persistent, but they were not brilliant. Rather, they were lucky—they faced an opponent with leaders unwilling to learn from their failures: the United States. When the Vietcong went toe-to-toe with U.S. forces in the 1968 Tet Offensive, they were decimated. When South Vietnam finally fell in 1975, it did so not to the Vietcong, but to regular units of the invading North Vietnamese Army. The Vietcong insurgency contributed greatly to the erosion of the American public’s will to fight, but so did the way that President Lyndon Johnson and the American military waged the war. It was North Vietnam’s will and American failure, not skillful use of an insurgency, that were the keys to Hanoi’s victory.
Similar misunderstandings persist over the Soviet Union’s defeat in Afghanistan, the other supposed example of guerrilla invincibility. But it was not the mujahidin’s strength that forced the Soviets to leave; it was the Soviet Union’s own economic and political weakness at home. In fact, the regime the Soviets established in Afghanistan was so formidable that it managed to survive for three years after the Red Army left.
Of course, history is not without genuine insurgent successes. Fidel Castro’s victory in Cuba is probably the best known, and there was the IRA’s partial triumph in 1922, as well as Algeria’s defeat of the French between 1954 and 1962. But the list of failed insurgencies is longer: Malayan Communists, Greek Communists, Filipino Huks, Nicaraguan Contras, Communists in El Salvador, Che Guevara in Bolivia, the Boers in South Africa (twice), Savimbi in Angola, and Sindero Luminoso in Peru, to name just a few. If the current U.S. administration maintains its will, establishes security in Baghdad, and succeeds in building a functioning government and army, there is no reason that the Iraqi insurgency cannot be similarly destroyed, or at least reduced to the level of terrorist thugs....
Posted on: Wednesday, January 31, 2007 - 01:56
Specialist in Constitutional Law
appearing before the
Senate Committee on the Judiciary
“Exercising Congress’s Constitutional Power to End a War”
January 30, 2007
Mr. Chairman, thank you for inviting me to offer my views on the constitutional authority of Congress to restrict, redirect, or terminate military operations. In recent years, some commentators have argued that Congress cannot, in time of war, interfere with the President’s power as Commander in Chief. Others claim that if Congress decides to exercise the power of the purse it must terminate all funding rather than adopting more selective or focused approaches. These commentators read congressional power far too narrowly and misunderstand the purpose of the Constitution and its commitment to representative (republican) government.
Congress is not merely a “coequal” branch of government. The framers vested the decisive and ultimate powers of war and spending in the legislative branch. We start with that basic understanding. American democracy places the sovereign power in the people and entrusts to them the temporary delegation of their power to elected Senators and Representatives. Members of Congress take an oath of office to defend the Constitution, not the President. Their primary allegiance is to the people and the constitutional principles of checks and balances and separation of power.1 Any interpretation of presidential power that fails to take account of those basic concepts is contrary to the democratic system established in the United States.
The legislative judgment to take the country to war carries with it a duty throughout the conflict to decide that military force remains in the national interest. As with any other statute, Congress is responsible for monitoring what it has set in motion. In the midst of war, there are no grounds for believing that the President’s judgment for continuing the war is superior to the collective judgment of elected representatives. Congress has both the constitutional authority and the responsibility to retain control and recalibrate national policy whenever necessary.
The breadth of congressional power is evident simply by looking at the text of the Constitution and comparing Article I to Article II. The powers expressly stated give Congress the predominant role in matters of war. However, this purely textual reading misses what the American framers did, why they did it, and how they broke with the reigning British models of executive power. Their study of history led them to place in Congress the sole power to take the country from a state of peace to a state or war. They left with the President in his capacity as Commander in Chief, certain defensive powers to “repel sudden attacks.”
Rejecting Monarchical Power
In 1787, the existing models of government throughout Europe, particularly in England, placed the war power and foreign affairs solely in the hands of the Executive. John Locke, in his Second Treatise on Civil Government (1690), vested the “federative” power (what we call foreign policy) with the Executive. Sir William Blackstone, in his Commentaries, defined the king’s prerogative broadly to include the right to declare war, send and receive ambassadors, make war or peace, make treaties, issue letters of marque and reprisal (authorizing private citizens to undertake military actions), and raise and regulate fleets and armies.
The framers carefully studied this monarchical model and repudiated it in its entirety. Not a single one of Blackstone’s prerogatives was granted to the President. They are either assigned entirely to Congress (declare war, issue letters of marque and reprisal, raise and regulate fleets and armies) or shared between the Senate and the President (appointing ambassadors and making treaties). The rejection of the British and monarchical models could not have been more sweeping.
This explains what the framers did. The next question is why they did it. The framers gave Congress the power to initiate war because they concluded — based on the history of other nations — that Executives, in their quest for fame and personal glory, had too great an appetite for war and little care for their subjects or the long-term interests of their country.2 John Jay, whose experience in the Continental Congress and the early years of the Republic was generally in foreign affairs, 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.”
Joseph Story, who served on the Supreme Court from 1811 to 1845, similarly wrote about the need to vest in the representative branch the decision to go to war. The power to declare war “is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nations. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometime subversive of the great commercial, manufacturing, and agricultural interests.” Story found war as “sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead.”3
Through their study of history and political ambition, the framers came to fear the Executive appetite for war. Human nature has not changed over the years to justify trust in independent and unchecked presidential decisions in war. The record of two centuries in America teaches us that what Jay said in 1788 applies equally well to contemporary times.
Offensive and Defensive Wars
The debates at the Philadelphia Convention in 1787 underscore the framers’ intent to keep offensive wars in the hands of Congress while reserving to the President certain actions of a defensive nature. All three branches understood that distinction for 160 years, until President Truman went to war against North Korea by going to the UN Security Council for “authority” instead of to Congress.
Review what the framers said in Philadelphia. On June 1, 1787, Charles Pinckney offered his support for “a vigorous Executive but was afraid the Executive powers of Congress might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind, towit an elective one.” 1 Farrand 64-65. John Rutledge wanted the executive power placed in a single person, “tho’ he was not for giving him the power of war and peace.” James Wilson, who also preferred a single executive, “did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c.” Id. at 65-66.
Edmund Randolph worried about executive power, calling it “the foetus of monarchy.” The delegates to the Philadelphia Convention, he said, had “no motive to be governed by the British Governmt. as our prototype.” Alexander Hamilton, in a lengthy speech on June 18, strongly supported a vigorous and independent President, but plainly jettisoned the British model of executive prerogatives in foreign affairs and the war power. In discarding the Lockean and Blackstonian doctrines of executive power, he proposed giving the Senate the “sole power of declaring war.” The President would be authorized to have “the direction of war when authorized or begun.” Id. at 292. In Federalist No. 69, Hamilton explained the break with English precedents. The power of the king “extends to the declaring of war and to the raising and regulating of fleets and armies.” The delegates decided to place those powers, he said, in Congress.
At the constitutional convention, Charles Pinckney objected that legislative proceedings “were too slow” for the safety of the country in an emergency, since he expected Congress to meet but once a year. James Madison and Elbridge Gerry moved to amend the draft constitution, empowering Congress to “declare war” instead of to “make war.” This change in language would leave to the President “the power to repel sudden attacks.” The motion carried. 2 Farrand 318-19.
Reactions to the Madison-Gerry amendment reinforce the narrow grant of authority to the President. Pierce Butler wanted to give the President the power to make war, arguing that he “will have all the requisite qualities, and will not make war but when the Nation will support it.” Not a single delegate supported him. Roger Sherman objected: “The Executive shd. be able to repel and not to commence war.” Id. at 318. Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason spoke “agst giving the power of war to the Executive, because not to be trusted with it. . . . He was for clogging rather than facilitating war.” 2 Farrand 319. His remarks echo what Jay said in Federalist No. 4. At the Pennsylvania ratifying convention, James Wilson expressed the prevailing sentiment that the system of checks and balances “will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.” 2 Elliot 528. The power of initiating war was vested in Congress. To the President was left certain defensive powers “to repel sudden attacks.”
This distrust of presidential power in matters of war was expressed frequently after the Philadelphia convention. In 1793, Madison called war “the true nurse of executive aggrandizement. . . . In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.”4 Five years later, in a letter to Thomas Jefferson, Madison said that the Constitution “supposes, what the History of all Govts demonstrates, is that Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”5
Separating Purse and Sword
The need to keep the purse and the sword in separate hands was a bedrock principle for the framers. They recalled the efforts of English kings who, denied funds from Parliament, decided to rely on outside sources of revenue for their military expeditions. The result was civil war and the loss of Charles I of both his office and his head.6 The growth of democratic government is directly tied to legislative control over all expenditures, including those for foreign and military affairs.
The U.S. Constitution attempted to avoid the British history of civil war and bloodshed by vesting the power of the purse wholly in Congress. Under Article I, Section 9, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In Federalist No. 48, Madison explained that “the legislative department alone has access to the pockets of the people.” The President gained the title of Commander in Chief but Congress retained the power to finance military operations. For Madison, it was a fundamental principle of democratic government that “[t]hose who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”7 This understanding of the war power was widely understood. Jefferson praised the transfer of the war power “from the executive to the Legislative body, from those who are to spend to those who are to pay.”
Commander in Chief
In recent years, advocates of presidential authority have argued that the title “Commander in Chief” empowers the President to initiate military operations against other countries and to continue unless Congress cut off all funds, presumably by mustering a two-thirds majority in each House to overcome an expected presidential veto. Such a scenario means that a President could start and continue a war so long as he had at least one-third plus one in a single chamber of Congress. Nothing in the writings of the framers, the debates at Philadelphia and the ratifying conventions, or the text of the Constitution supports that theory.
Article II reads: “The President shall be 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.” Here is one constitutional check. Congress, not the President, does the calling. Article I gives to Congress the power to provide “for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Under Article I, Congress raises and supports armies and provides and maintains a navy. It makes rules for the government and regulation of the land and naval forces. It provides for organizing, arming, and disciplining the militia.
The Constitution does not empower the President as Commander in Chief to initiate and continue wars. In Federalist No. 74, Hamilton explained part of the purpose for making the President Commander in Chief: unity of command. The direction of war “most peculiarly demands those qualities which distinguish the exercise of power by a single head.” The power of directing war and emphasizing the common strength “forms a usual and essential part in the definition of the executive authority.” The President’s authority to bring unity of purpose in military command does not deprive Congress of its constitutional responsibility to monitor war and decide whether to restrict or terminate military operations.
A third quality attaches to the Commander in Chief Clause. Giving that title to the President represents an important technique for preserving civilian supremacy over the military. The person leading the armed forces would be the civilian President, not a military officer. In 1861, Attorney General Edward Bates explained that the President is Commander in Chief not because he is “skilled in the art of war and qualified to marshal a host in the field of battle.” He is Commander in Chief for a different reason. Whatever soldier leads U.S. armies to victory against an enemy, “he is subject to the orders of the civil magistrate, and he and his army are always ‘subordinate to the civil power.’”8 Just as military officers are subject to the direction and command of the President, so is the President subject to the direction and command of Members of Congress, because they are the representative of the sovereign people. To allow a President to conduct a war free of legislative constraints, or free of constraints unless both Houses muster a two-thirds majority to override a veto, would violate fundamental principles of republican government.
The Constitution in Practice
The basic distinction between offensive and defensive military actions was understood by all three branches for the first 160 years. President Truman’s decision to go to war in 1950 against North Korea marked a fundamental change. He went not to Congress for authority but to the UN Security Council. Korea represented the first of several unconstitutional presidential wars.9 Prior to that time it was broadly understood by Congress, Presidents, and the courts that anything of an offensive nature in military operations was reserved strictly to the nation’s representatives. Presidents accepted that principle for all wars: declared or undeclared.
When President George Washington took military action against certain Indian tribes, he carefully followed statutory policy and understood that his operations against tribes were to be defensive, not offensive, measures. His Secretary of War, Henry Knox, wrote to governors: “The Congress which possess the powers of declaring War will assemble on the 5th of next Month –– Until their judgments shall be known it seems essential to confine all your operations to defensive measures.”10 To Knox, Washington had no authority to “direct offensive operations” against Indian tribes because such measures were reserved to “the decisions of Congress who solely are invested with the powers of War.”11
Chief Justice John Marshall, writing for the Court in 1801, spoke expansively about the powers of Congress in war: “The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry.”12 If a presidential proclamation in time of war conflicted with statutory policy enacted by Congress, the statute prevailed over the proclamation.13 Similarly, the Neutrality Act of 1794 established a national policy that could not be disregarded by independent presidential judgments over military operations. Ruled a circuit court in 1806: “The President of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids.”14 Further: “Does [the President] possess the power of making war? That power is exclusively vested in congress.”15 If a nation invaded the United States, the President would have an obligation to resist with force. But there was a “manifest distinction” between going to war with a nation at peace and responding to an actual invasion: “In the former case, it is the exclusive province of congress to change a state of peace into a state of war.”16
President Jefferson understood the difference between defensive and offensive wars. In 1801, he directed a squadron into the Mediterranean, telling commanders that in the event the Barbary powers declared war on the United States or took any offensive actions against U.S. ships, American commanders were to sink and destroy the attacking vessels. Having issued that order, based on congressional authority in providing for a “naval peace establishment,” he recognized that Congress decided the nation’s military policy: “The real alternative before us is whether to abandon the Mediterranean or to keep up a cruise in it, perhaps in rotation with other powers who would join us as soon as there is peace. But this Congress must decide.”17 Although the Pasha of Tripoli insisted on a larger tribute from the United States and declared war on America on May 14, 1801, Jefferson looked solely to Congress to decide the nation’s response. On December 8, he informed Congress of the situation and asked for further guidance, stating he was “unauthorized by the Constitution, without the sanctions of Congress, to go beyond the line of defense.” It was up to Congress to authorize “measures of offense also.” He gave to Congress all the documents it needed so that the legislative branch, “in the exercise of this important function confided by the Constitution to the Legislature exclusively,” could act in the manner it considered most appropriate.18
It is often said during congressional debate and in studies released by the Justice Department that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress.19 In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison against the Barbary pirates.20
Those who promote unilateral and plenary power for the President in matters of war frequently cite the Supreme Court decision in The Prize Cases (1863), which upheld President Lincoln’s blockade of rebellious states. However, the Court clearly distinguished between defensive and offensive actions. Justice Robert Grier said that although the President as Commander in Chief had no power to initiate war, in the event of foreign invasion the President was not only authorized “but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for the special legislative authority.”21 The President had no choice but to meet the crisis in the shape it presented itself “without waiting for Congress it with a name; and no name given to it by him or them could change that fact.”22
Yet Justice Grier proceeded to carefully limit the President’s power to defensive actions, noting that he “has no power to initiate or declare a war against either a foreign nation or a domestic State.”23 The executive branch took exactly the same position. During oral argument, Richard Henry Dana Jr., who was representing the President, acknowledged that Lincoln’s actions had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”24
In a case decided by the Supreme Court in 1889, England had called upon the United States to supply naval forces for a military action against China. The Court made it clear that offensive operations had to be authorized by Congress, not the President. The Secretary of State told the English government that “the warmaking power of the United States was not vested in the President but in Congress, and that he had no authority, therefore, to order aggressive hostilities to be undertaken.”25 Significantly, the Court spoke not merely of the congressional power to declare war but of a broader power: war-making. The decision to spill the nation’s blood and draw funds from the Treasury is reserved to Congress, not the President.
Presidents, in probably more than two hundred instances, have used military force without first receiving congressional authority. Those actions generally fall under the category of “protecting life or property,” including chasing bandits over the Mexican border. None of these actions come close to anything approaching a major war.26
Contemporary Statutory Restrictions
Congress has often enacted legislation to restrict and limit military operations by the President, selecting both appropriations bills and authorizing legislation to impose conditions and constraints. The Congressional Research Service recently prepared a lengthy study that lists these statutory provisions.27 A major cutoff of funds occurred 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.28 A lawsuit by Representative Elizabeth Holtzman 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. A federal district court 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 had not authorized.”29 Appellate courts mooted the case because the August 15 compromise settled the dispute between the two branches and terminated funding for the war.30
Through its power to authorize programs and appropriate funds, Congress can define and limit presidential military actions. Some claim that the power of the purse is an ineffective and impractical method of restraining presidential wars. Senator Jacob Javits said that Congress “can hardly cut off appropriations when 500,000 American troops are fighting for their lives, as in Vietnam.”31 The short answer is that Congress can, and has, used the power of the purse to restrict and terminate presidential wars. If Congress is concerned about the safety of American troops, those lives are not protected by voting additional funds for a war it does not support.
A proper and responsible action, when war has declining value or purpose, is to reevaluate the commitment by placing conditions on appropriations, terminating funding, moving U.S troops to a more secure location, and taking other legislative steps. There is one central and overriding question: Is the continued use of military force in the nation’s interest? If not, then U.S. soldiers need to be safely withdrawn and redeployed. Answering that difficult question is not helped by speculation about whether congressional action might “embolden the enemy.”
Other examples of congressional intervention can be cited. In 1976, Congress prohibited the CIA from conducting military or paramilitary operations in Angola and denied any appropriated funds to finance directly or indirectly any type of military assistance to Angola. In 1984, Congress adopted the Boland Amendment to prohibit assistance of any kind to support the Contras in Nicaragua. No constitutional objection to this provision was ever voiced publicly by President Reagan, the White House, the Justice Department, or any other agency of the executive branch.32
Congress has options other than a continuation of funding or a flat cutoff. In 1986, Congress restricted the President’s military role in Central America by stipulating that U.S. personnel “may not provide any training or other service, or otherwise participate directly or indirectly in the provision of any assistance, to the Nicaraguan democratic resistance pursuant to this title within those land areas of Honduras and Costa Rica which are within 20 miles of the border with Nicaragua.”33 In 1991, when Congress authorized President George H. W. Bush to use military force against Iraq, the authority was explicitly linked to UN Security Council Resolution 678, which was adopted to expel Iraq from Kuwait.34 Thus, the legislation did not authorize any wider action, such as using U.S. forces to invade and occupy Iraq. In 1993, Congress established a deadline for U.S. troops to leave Somalia. No funds could be used for military action after March 31, 1994, unless the President requested an extension from Congress and received prior legislative priority.33
In debating whether to adopt statutory restrictions on the Iraq War, Members of Congress want to be assured that legislative limitations do not jeopardize the safety and security of U.S. forces. Understandably, every Member wants to respect and honor the performance of dedicated American soldiers. However, the overarching issue for lawmakers is always this: Is a military operation in the nation’s interest? If not, placing more U.S. soldiers in harm’s way is not a proper response. Members of the House and the Senate cannot avoid the question or defer to the President. Lawmakers always decide the scope of military operations, either by accepting the commitment as it is or by altering its direction and purpose. In a democratic republic, that decision legitimately and constitutionally resides in Congress.
1. The Constitution Project, Deciding to Use Force Abroad: War Powers in a System of Checks and Balances (2005).
2. William Michael Treanor, “Fame, The Founding, and the Power to Declare War,” 82 Corn. L. Rev. 695 (1997).
3. 3 Joseph Story, Commentaries on the Constitution of the United States 60-61 (1833).
4. 6 The Writings of James Madison 174 (Hunt ed. 1900-10).
5. Id. at 312.
6. Paul Einzig, The Control of the Purse 57-62, 100-06 (1959). See also Charles Tiefer, “Can Appropriation Riders Speed Our Exit From Iraq?,” 42 Stan. J. Int’l L. 291, 299 (2006); Richard D. Rosen, “Funding ‘Non-Traditional’ Military Operations: The Alluring Myth of a Presidential Power of the Purse,” 155 Mil. L. Rev. 1, 29-44 (1998).
7. 6 The Writings of James Madison 146 (emphasis in original).
8. 10 Ops. Att’y Gen. 74, 79 (1861) (emphasis in original).
9. Louis Fisher, “The Korean War: On What Legal Basis Did Truman Act?,” 89 Am. J. Int’l L. 21 (1995). For presidential reliance on the UN Security Council and NATO countries for “authority,” instead of Congress, see Louis Fisher, “Sidestepping Congress: Presidents Acting Under the UN and NATO,” 47 Case W. Res. L. Rev. 1239 (1997).
10. Louis Fisher, Presidential War Power 19 (2d ed. 2004).
12. Talbot v. Seeman, 5 U.S. 1, 28 (1801).
13. Little v. Barreme, 6 U.S. (2 Cr.) 169 (1804).
14. United States v. Smith, 27 Fed. Cas. 1192, 1230 (C.C.N.Y. 1806) (No. 16,342).
17. Fisher, Presidential War Power, at 33-34.
18. Id. at 34.
19. 4A Ops. O.L.C. 187 (1980); 140 Cong. Rec. 19809 (1994) (statement by Senator McCain, third column). The opinion of the Office of Legal Counsel was placed in the Congressional Record: 139 Cong. Rec. 25702-05 (1993).
20. Fisher, Presidential War Power, at 35-37.
21. The Prize Cases, 67 U.S. 635, 668 (1863).
22. Id. at 669.
23. Id. at 668.
24. Id. at 660 (emphasis in original).
25. The Chinese Exclusion Case, 130 U.S. 581, 591 (1889).
26. Fisher, Presidential War Power, at 57-66.
27. Congressional Research Service, “Congressional Restrictions on U.S. Military Operations in Vietnam, Cambodia, Laos, Somalia, and Kosovo: Funding and Non-Funding Approaches,” January 16, 2007, RL33803. See also Tiefer, “Can Appropriation Riders Speed Our Exit From Iraq?,” 42 Stan. J. Int’l L. at 303-17.
28. 119 Cong. Rec. 21778 (1973).
29. Holtzman v. Schlesinger, 361 F.Supp. 553, 565 (E.D. N.Y. 1973).
30. Fisher, Presidential War Power, at 143-44.
31. Jacob K. Javits, “The War Powers Resolution and the Constitution: A Special Introduction,” in The President’s War Powers: From the Federalist to Reagan 3 (Demetrios Caraley, ed. 1984).
32. Fisher, Presidential War Power, at 275-76.
33. 100 Stat. 3341-307, sec. 216(a) (1986).
34. 105 Stat. 3 (1991).
35. 107 Stat. 1476 sec. 8151(b)(2)(B) (1993). See also my articles and books: “Unchecked Presidential Wars,” 148 U. Pa. L. Rev. 1637 (2000); “Presidential Independence and the Power of the Purse,” 3 U.C. Davis J. Int’l Law & Pol. 107 (1997); “Congressional Checks on Military Initiatives,” 109 Pol. Sci. Q. 739 (1994-95); “How Tightly Can Congress Draw the Purse Strings?,” 83 Am. J. Int’l L. 758 (1989); Presidential Spending Power (1975).
Posted on: Wednesday, January 31, 2007 - 01:08
Mr. Chairman and members of the Committee. It is a great pleasure to appear before you once again this morning. The issue before us is one of great importance to the nation and to the principle of the rule of law. As this hearing will demonstrate, it is also an issue about which honest and able scholars can profoundly disagree.
Because I think it is so critical to these issues, I will spend a few minutes at the start addressing the original understanding of the constitutional paradigm regarding the separation of powers between Congress and the President related to war and foreign affairs. Secondly, on the basis of that understanding, I will argue that the Constitution gave the President a considerable amount of discretion in these areas that was not intended to be checked by either Congress or the Judiciary — including what John Jay described as ‘the business of intelligence” and the conduct of war and diplomacy.
This is not to suggest that Congress and the Senate don’t have important roles relative to these areas. The commander-in-chief power itself is a conditional authority, and until Congress “raises and supports” an army or ‘provides and maintains” a navy, the President has no military force to “command.” One-third-plus-one of the Senate can exercise a “negative” over presidential ratification of a treaty, and a majority can block the appointment of diplomats and military officers. The President can spend no money from the Treasury without “Appropriations made by law.” Each of these powers is, and was intended by the Founding Fathers to be, important. So my third point is that, in virtually any large-scale and sustained military operation, the Constitution effectively vests Congress with the constitutional power to end a war—as the title of today’s hearing suggests. By refusing new appropriations and rejecting requests for new troops and supplies, Congress can virtually assure that America military forces and/or allies who rely upon our assurances will be defeated and our enemies will prevail on the battlefield.
My fourth point is that the Founding Fathers viewed the powers of Congress and the Senate related to war and foreign affairs as “exceptions” to the general grant of “executive Power” vested in the President; and, as such, these powers were intended to be strictly construed. Neither Congress nor the President may properly exercise their own powers in a manner that usurps the constitutional authorities of the other, and when Congress attempts to control decisions vested by the people in the discretion of the President it becomes a “lawbreaker.” In candor, in recent decades I have witnessed far more lawbreaking by Congress in the national security realm than by the President.
My final point, Mr. Chairman, may be the most important one: Consider the consequences. Even if Congress has the constitutional power to cut off food and ammunition to our forces at war and ultimately guarantee a victory in Iraq for those who have been killing our forces and engaging in the wholesale and brutal slaughter of the people of Iraq – be they members of al Qaeda in Iraq, followers of pro-Iranian factions, or other radical groups – I beseech you to think through the wisdom of taking such action. There is a reason the Framers vested considerable discretion in the President in this area, and unconstitutional efforts by Congress to usurp that discretion since 1970 have led to the unnecessary slaughter of millions, the consignment to totalitarian tyranny of tens of millions, the needless deaths of large numbers of our own military forces, and quite possibly contributed to the slaughter of 3000 innocent people on September 11, 2001.
I recognize that these are strong and serious charges, but they are not hyperbole. I hope you will bear with me as I add some substance to this outline and endeavor to document the points I have made.
The Original Understanding of the
War/Foreign Affairs Constitutional Paradigm
I submit it is important to start this inquiry by examining the original understanding of the Constitution and its interpretation between 1787 and about 1970, when—during the heated national debate over the war in Vietnam—America virtually suffered a hard drive crash here at home. Understandings about constitutional separations of powers that had historically been embraced by all three branches of government were suddenly forgotten by almost everyone, and a new generation of scholars and politicians began looking anew at the constitutional text in search of new theories and paradigms.
Seeking to ascertain the original understanding is hardly the only step in constitutional interpretation, but it is nevertheless an important part of the process. Words are an imperfect instrument for conveying ideas, and sometimes outside of context words can be ambiguous. Even more important, some words used by the Framers of our Constitution have over the years lost all or part of their original meaning. Thus, if we were to learn that a prominent supporter of the Constitution in 1787 later declared that it was an “awful” document, our understanding of his sentiments would be furthered by the knowledge that in the eighteenth century the word “awful” meant something that filled one with awe or was awe inspiring.
Terms like “declare War” and “executive Power” had clear meanings to the authors of our Constitution, who as a group were remarkably well-read men and were familiar with the writings of Grotius, Vattel, Lock, Montesquieu, and Blackstone. And when we seek to understand such language without comprehending those meanings we run a great risk of going astray. To the authors of our Constitution, the term “militia” referred to the able-bodied men of military age in each state who were subject to being called up to perform their civic duty in the event of foreign invasion, rebellion, or a similar contingency. Yet how many “experts” today, in ignorance of that reality, contend that the Second Amendment’s guarantee of a “well-regulated militia” was intended merely to permit states to maintain an armory for use by its “national guard”?
So I hope you will bear with me a bit while I rewind the clock to the late eighteenth century and examine some of the writings of men like Thomas Jefferson, George Washington, John Marshall, and the three authors of the Federalist Papers to help us understand the constitutional text. In particular, it is imperative that we understand that they interpreted the term “executive Power” in Article II, Section 1, as that term was used by writers like John Locke, Montesquieu, and William Blackstone.
My academic interest in these subjects was first sparked more than four decades ago, when as an undergraduate I heard a lecture by the great Quincy Wright. Professor Wright, as you may know, served as President of the American Society of International Law and both the American and the International Political Science Association. His 1922 treatise on The Control of American Foreign Policy remains a classic in the field. And in that volume he observed that “when the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto.”
Fifty years later, writing in Foreign Affairs and the Constitution, Columbia Law School Professor Louis Henkin added: “The executive power . . . was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone.” But that observation doesn’t tell us very much unless we are familiar with the separation-of-powers writings of those great scholars.
Let us look first at John Locke, who a century before our Constitution went into force coined the term “federative power” in his Second Treatise on Civil Government to denote the control of decisions involving “war, peace, leagues, and alliances.” Locke placed the federative power in the same hands as the “executive” power. The gist of his arguments was that the successful management of war and foreign affairs required for its success the attributes of unity of plan, secrecy, and speed and dispatch. And since deliberative legislative assemblies are inherently lacking in those competencies, and further are unable to anticipate all of the developments that might occur on a battlefield or in foreign negotiations, these matters must of necessity be entrusted to the prudence of the executive to be managed for the common good. Consider this excerpt:
These two Powers, Executive and Federative, though they be really distinct in themselves, yet one comprehending the Execution of the Municipal Laws of the Society within its self, upon all that are parts of it; the other the management of the security and interest of the publick [sic] without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive; and so must necessarily be left to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick [sic] good. . . . [W]hat is to be done in reference to Foreigners, depending much upon their actions, and the variation of designs and interest, must be left in great part to the Prudence of those who have this Power committed to them, to be managed by the best of their Skill, for the advantage of the Commonwealth.
Other publicists whose writings were highly influential on the Founding Fathers characterized foreign affairs (including war) as a component of the “executive” power. In 1748, Montesquieu — characterized by James Madison in Federalist No. 47 as “[t]he oracle who is always consulted and cited” on the subject of separation of powers — reasoned that “[i]n every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.” He explained that by the second of these “executive” powers, the prince or magistrate “makes peace or war, sends or receives embassies, establishes the public security, and provides against invasion.”
Similarly, in the late 1760s, Sir William Blackstone published his four-volume Commentaries on the Laws of England, and observed that the King of England “is and ought to be absolute” in his “executive” prerogative with respect to “this nation’s intercourse with foreign nations,” adding that with respect to treaties, pardons, and “this nation’s intercourse with foreign nations” there is “no legal authority that can either delay or resist him” save as expressed in the Constitution.
[T]he executive part of government . . . . is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation . . . . With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. . . . What is done by the royal authority, with regard to foreign powers, is the act of the whole nation . . . .
And if you think such a description has nothing to do with the American Executive, consider this 1800 statement by Representative John Marshall (Fed.-Va.) “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . He possesses the whole Executive power. . . . In this respect the President expresses constitutionally the will of the nation.”
One of the many myths that we often hear about the American Revolution is that our ancestors were rejecting the British constitutional system. But when Thomas Jefferson wrote his powerful Summary View of the Rights of British America in 1774, his complaint was not that the British Constitution was inherently bad, but rather that it had been corrupted and abused by both King and Parliament so as to deny the colonial subjects their fundamental rights. Few, if any, American leaders were more hostile to Great Britain than Jefferson. Yet, in a letter to John Adams written shortly after the Federal Convention had adjourned, Jefferson acknowledged that the English Constitution was “better than all which have proceeded it . . . .” Pulitzer Prize-winning historian Professor Gordon S. Wood, of Brown University, observed in The Creation of the American Republic 1776-1787 that the American colonists “revolted not against the English constitution but on behalf of it.”
Why am I so certain the Founding Fathers viewed foreign affairs as a component of the “executive Power” vested in the President in Article II, Section 1, of their new Constitution? Because they discussed it repeatedly. During the First Session of the First Congress, Representative James Madison introduced a bill to establish a Department of Foreign Affairs. It was a very simple bill that could fit on a single page, essentially declaring that the department was hereby established and was to be headed by a Secretary who was to conduct the business of said department as directed by the President. As Johns Hopkins scholar Charles Thach explained in his 1922 classic, The Creation of the Presidency 1775-1789:
The sole purpose of that organization was to carry out, not legislative orders, as expressed in appropriation acts, but the will of the executive. In all cases the President could direct and control, but in the ‘presidential’ departments [war and foreign affairs] he could determine what should be done, as well as to how it should be done. …Congress was extremely careful to see to it that their power of organizing the department did not take the form of ordering the secretary what he should or should not do.
During the debate on Madison’s bill, a question arose about who could remove the Secretary once appointed with the advice and consent of the Senate. Madison carried the day by observing that the Constitution has vested the nation’s “executive power” in the President, and the Senate had only been joined in the appointment and not the removal part of that process. As Madison explained his view (which prevailed in both the House and the Senate) to a colleague from the Philadelphia Convention in reporting on the important debate: “[T]he Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department. . . .”
I would submit that this is an important precedent, and that the same logic that narrowly construed the Senate’s role in executive appointments might also have relevance in the debate on the scope of the power “to declare War.” For, as I will demonstrate, that power was also recognized as an “exception” to the President’s general grant of executive power.
John Jay was by far America’s most experienced diplomat, and not surprisingly George Washington tapped him to be the new nation’s first Secretary of Foreign Affairs. But Jay had also served as Chief Justice of New York, and he persuaded the President to appoint him Chief Justice of the United States – a move that opened the way for Thomas Jefferson, who was just returning from his post as U.S. Minister to France, to be named Secretary of Foreign Affairs. (The department was soon renamed “Department of State” when additional duties, like keeping the national seal and issuing commissions to executive officers and judges, were attached to the job.)
Soon after taking office, Jefferson was asked by President Washington where the Constitution has vested all of the decisions regarding foreign affairs that were not expressly addressed in the text of the document. Jefferson provided this response:
The Constitution . . . . has declared that ‘the Executive power shall be vested in the President,’ submitting only special articles of it to a negative by the Senate . . . .
The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.
One week later, President Washington made this entry in his diary:
“Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.
So we have Thomas Jefferson, George Washington, America’s first Chief Justice, and two of the three authors of the Federalist Papers clearly on record as believing that the business of foreign affairs was vested exclusively in the President as part of the “executive Power” contained in Article II, Section 1 save for those narrowly construed “exceptions” clearly vested in Congress or the Senate. But, obviously, there were sharp differences of opinion among the Founding Fathers on many issues, so it is useful to consider the views of Jefferson’s key rival at the time and the third contributor to the Federalists. Alexander Hamilton, too, addressed this issue – most clearly in his first Pacificus essay in 1973:
The general doctrine of our Constitution . . . is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument. . . .
It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general “executive power” vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.
While, therefore, the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations . . . enjoin in the intercourse of the United States with foreign Powers.
This might be an appropriate time to make another observation. On August17, 1787, James Madison and Elbridge Gerry (who later served as Madison’s Vice President) moved during the Constitutional Convention to deny Congress the power to “make” war and substitute instead the power to “declare” war. There are some differences in the surviving notes on this debate (which was conducted under rules of strict secrecy), but the final vote appears to have been 8-to-1 in favor of the Madison-Gerry motion, with only New Hampshire in the end voting in the negative. And a key argument in the debate for denying Congress the power to “make” war was made by Rufus King — that “‘make’ war might be understood to ‘conduct’ it which was an Executive function.”
Accepting that the power to “declare War” was an exception to the President’s general grant of “executive” power, and thus was to be construed “strictly,” it is worth noting that “declare War” was a term of art from the law of nations that had a well understood and rather narrow meaning at the time the Constitution was written. The Framers understood the concept of “force short of war,” and the leading publicists of the era associated formal declarations of war only with what today we would call all-out “aggressive” wars. In the eighteenth century, every sovereign State had the right to resort to self-help measures to protect itself as well as to blatant armed international aggression to further its perceived self-interest. The sovereign State was the supreme entity, there being no international legislature to establish rules, executive to enforce them, or judiciary to resolve disputes among nations. States were therefore only constrained by the treaties and voluntary customary practices to which they voluntarily consented to be bound.
There is some confusion inherent in the term “offensive,” as in jus ad bellum it is distinguished from going to war for “defensive” purposes (i.e., in today’s parlance launching an “aggressive” war), while under jus in bello it includes offensive counter-attacks like Douglas MacArthur’s 1950 Inchon Landing in Korea or Norman Schwarzkopf’s brilliant “left hook” in the early days of Operation Desert Storm. Neither of those “offensive” maneuvers changed the UN Security Council-authorized forces led by American generals into the “aggressors” for purposes of establishing the lawfulness of the conflict. The point I am making is that when the term “offensive” is used in a jus ad bellum context, it is synonymous with “aggressive” – and such military operations have been illegal in theory since the 1922 Kellogg-Briand Treaty and in reality since the adoption of the UN Charter in 1945.
Thus, I would submit that, in terms of international law, the kinds of conflicts historically associated with formal declarations of war are now blatantly unlawful. No country has clearly issued a “declaration of war” since the 1940s, and in that sense the congressional power to “declare War” may today be as much an anachronism as the power conveyed in the same clause of Article I, Section 8, of the Constitution empowering Congress to “grant Letters of Marque and Reprisal . . . .”
In discussing the meaning of a “declaration of war” in his 1620 classic, De Jure Belli ac Pacis, Hugo Grotius – often described as the “father” of modern international law, explained “no declaration is required when one is repelling an invasion, or seeking to punish the actual author of some crime.” This was consistent with the writings of sixteenth century Italian jurist Alberico Gentili, who reasoned: “when war is undertaken for the purpose of necessary defence, the declaration is not at all required.” The most influential international law publicist at the time of the Federal Convention was certainly Switzerland’s Emmerich de Vattel, whose writings were often cited by Jefferson and by Hamilton and John Marshall as well. In discussing formal declarations of war, Vattel asserted “[h]e who is attacked and only wages defensive war, needs not to make any hostile declaration . . . .”
Advocates of broad congressional war power are fond of quoting a September 1789 letter from Thomas Jefferson to James Madison, of which there are two extant versions. In the copy actually sent to Madison, Jefferson wrote: “We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.” A slightly different version is found in Jefferson’s own files – presumably the original – in which the power “of letting him loose” is replaced by “of declaring war.”
What the champions of legislative war powers miss here is that Jefferson is conceding that, by its nature, the power to “declare war” is “executive” in character. Why else would he speak of “transferring” this power to Congress? Under the Articles of Confederation, there was no national executive and the Continental Congress was invested with the full power “to make war.” So the most logical explanation for Jefferson’s wording is that, like Locke, Montesquieu, and other writers of the time, he recognized that the entire business of “war” was by nature “executive” in character. Assuming this is true, then his maxim (widely shared by others at the time) that “exceptions” to the President’s grant of the nation’s “executive” power that were vested in the Senate or Congress were to be construed strictly should be applied.
This leads to yet another important separation of powers issue. Both the Philadelphia debates and the state ratification debates are replete with concerns that the power of the “sword” and the power of the “purse” must be kept separate. Yet if Congress usurps the President’s executive and commander-in-chief power to control the movement of troops (the “sword”), it will violate that fundamental principle because it already possesses the power of the “purse.”
There is yet another greatly misunderstood statement by Jefferson that is cherished by scholars who seek authority for a broad interpretation of the “declare War” clause. In his first state-of-the-union address in December 1801, President Jefferson reported on an encounter between the American schooner Enterprise and a Tripolitan cruiser in the Mediterranean. He told Congress that, because Congress had not authorized war, the American ship was only permitted to defend itself when attacked and then had to let the enemy ship go free. I don’t have time to dwell on the details of this incident here, beyond noting that Jefferson grossly misstated the facts of the case and referring interested readers elsewhere for a detailed discussion. We now have both a valuable compilation of historical naval records on the Barbary Wars and Jefferson’s hand-written notes from his first cabinet meeting, and it is absolutely clear that Jefferson and his cabinet agreed on March 15, 1801, to send two-thirds of the new American Navy to the Mediterranean with instructions that — if upon arrival at
Gibraltar they confirmed the rumors that Barbary Pirates had declared war on America — they were to “distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce & chastise their insolence—by sinking, burning or destroying their ships & Vessels wherever you shall find them.” I would add that Jefferson does not appear to have even informed Congress of this decision (although the deployment was reported in the newspapers and there was no effort to keep it secret), and when he did finally refer to the deployment more than six months after the ships had departed Norfolk there appear to have been no expressions of concern from Congress.
That early Congresses shared the understanding that the conduct of war and the business of diplomacy and intelligence were the exclusive province of the Executive is clear from the deference they showed in these areas. Thus, the first appropriations bill for foreign intercourse – enacted by Congress on July 1, 1790 – provided that:
“[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify, and cause a regular statement and account thereof to be laid before Congress annually.”
The broad congressional deference to the President during the first fifteen years of our history was captured by President Jefferson in a February 19, 1804, letter to Treasury Secretary Albert Gallatin:
The Constitution has made the Executive the organ for managing our intercourse with foreign nations. . . .
From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.
Until about the time of World War II, there were very few statutes that even arguably constrained the President’s discretion in foreign affairs or the conduct of war. As America began playing a greater role on the world stage, more powers of Congress involving things like foreign trade and assistance came into play the number of statutes increase – most of which were largely drafted by the Executive Branch. But the basic understanding that the Constitution entrusted not only the execution of foreign policy to the President, but the formulation of that policy as well – subject to the Senate’s negative over a completed treaty – continued until the time of the Vietnam War. Thus, in a speech at Cornell Law School in 1959, Senate Foreign Relations Committee Chairman J. William Fulbright explained:
The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs “which the Constitution does not vest elsewhere in clear terms.” He possesses sole authority to communicate and negotiate with foreign powers. He controls the external aspects of the Nation’s power, which can be moved by his will alone—the armed forces, the diplomatic corps, the Central Intelligence Agency, and all of the vast executive apparatus.
Let me close this first section by observing that the Supreme Court has also recognized the President’s special responsibilities in these areas. Consider, for example, Chief Justice William Howard Taft’s lengthy discussion of early views of the “executive Power” in Myers v. United States in 1926, striking down the Tenure in Office Act that had led to the 1868 impeachment of President Andrew Johnson:
Washington's first proclamation of neutrality in the war between France and Great Britain. . . . was at first criticized as an abuse of executive authority. It has now come to be regarded as one of the greatest and most valuable acts of the first President's Administration, and has been often followed by succeeding Presidents. Hamilton's argument was that the Constitution, by vesting the executive power in the President, gave him the right, as the organ of intercourse between the Nation and foreign nations, to interpret national treaties and to declare neutrality. He deduced this from Article II of the Constitution on the executive power, and followed exactly the reasoning of Madison and his associates as to the executive power upon which the legislative decision of the First Congress as to Presidential removals depends, and he cites it as authority. . . .
Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, . . . [and]; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive are limitations to be strictly construed, and not to be extended by implication . . . .
Certainly the most cited foreign affairs case is United States v. Curtiss-Wright Export Corp., in which the Court declared:
Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." . . . .
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.
Dean Harold Koh’s “Shared Powers” Paradigm
and the Effect of Youngstown on Curtiss-Wright
Before leaving this theoretical section, let me briefly address the very popular views of Yale Law School Dean Harold Hongju Koh – an old and able friend with whom I have shared many platforms over the years – in his prize-winning 1990 volume The National Security Constitution. (I have recently written on this issue at greater length, if anyone is interested. )
Like Lou Fisher and many others, Harold favors the “shared powers” concept of foreign affairs. I’m not fond of the term, not because I don’t agree that many decisions in foreign affairs ultimately require the participation of more than one branch but because the specific role of each branch tends to be unique. The President “nominates” and “appoints,” while the Senate may either consent or veto the person nominated. The President has the exclusive power to speak to foreign governments on behalf of the nation, but before a treaty he has negotiated may bind the United States as conventional international law it must be approved by two-thirds of those Senators present and voting. I think it best not to merge these distinct roles with language that might suggest that the actual functions of each branch are interchangeable or “shared” in some way. It is not that Harold and Lou are necessarily wrong in this explanation, but rather that I fear the use of the term “shared powers” may promote sloppy thinking by readers less knowledgeable about the actual workings of government.
My real quarrel with Harold involves his suggestion that there is some struggle going on between the Supreme Court’s landmark 1936 Curtiss-Wright opinion and the concurring opinion of Justice Robert Jackson in the 1952 Steel-Seizure case (Youngstown Sheet & Tube Co. v. Sawyer). I think this argument is candidly silly, and the two opinions when properly understood are not in conflict. But before turning to that, let me quoted from Harold’s highly-acclaimed volume:
At the Republic’s birth, the Framers deliberately drafted a Constitution of shared powers and balanced institutional participation, fully aware of the risks that arrangement posed to the nation’s international well-being. By mandating that separated institutions share powers in foreign as well as domestic affairs, the Framers determined that we must sacrifice some short-term gains for speed, secrecy, and efficiency in favor of the longer-term consensus that derives from reasoned interbranch consultation and participatory decision making. Although in the early years of the Republic, all three branches condoned a de facto transformation of the original National Security Constitution from a scheme of congressional primacy to one of executive primacy, they never rejected the concept of power sharing and institutional participation . . . .
He then goes on the explain how Curtiss-Wright radically changed the paradigm:
In 1936, Curtiss-Wright’s dicta boldly asserted the alternative vision of unfettered presidential management. But even as the Cold War raged, the 1947 National Security Act, Youngstown, and finally the post-Vietnam era framework statutes (e.g., War Powers Resolution) definitively rejected that vision as America’s constitutional model for dealing with the outside world. Vietnam (and Watergate, as well, to the extent that it arose from Vietnam) then taught that even in a nuclear age, America would not conduct globalism at the price of constitutionalism. It is therefore ironic that the Curtiss-Wright model should now resurface . . . .
I was particularly amused by this passage of the Koh book:
Critics on the right, in contrast, argue that to preserve our activist foreign policy, we must revise constitutionalism, abandoning the Youngstown vision in favor of Curtiss-Wright. Yet because many of these same critics also espouse the constitutional jurisprudence of original intent, they are forced to engage in revisionist history to contend that the Framers did not originally draft the Constitution to promote congressional dominance in foreign affairs.
I think what I enjoyed the most was that, of the ten or so “[c]ritics on the right” he footnotes to this passage, he listed me first – well ahead of such distinguished scholars as former Yale Law School Dean Eugene Rostow or my colleague John Norton Moore. But, flattery aside, I’ve never been able to get Harold to come up with statements from men like Washington, Jefferson, Madison, Hamilton, or Jay supporting his theory that foreign and domestic affairs involved the same basic “sharing of powers.” I hope I’ve demonstrated in some detail the broad consensus among these key Founders that Congress and the Senate were to be excluded from many decisions in the foreign affairs realm, and the powers they were given that were exceptions to the broad grant of “executive Power” to the President were to be construed strictly. In contrast, without any effort to document his assertion, Harold simply tells his reader “the first three articles of the Constitution expressly divided foreign affairs powers among the three branches of government, with Congress, not the president, being granted the dominant role. Elsewhere in the book he asserts:
This structural vision of a foreign affairs power shared through balanced institutional participation has inspired the National Security Constitution since the beginning of the Republic, receiving its most cogent expression in justice Robert Jackson’s famous 1952 concurring opinion in Youngstown. Yet throughout our constitutional history, what I call the Youngstown vision has done battle with a radically different constitutional paradigm. This counter image of unchecked executive discretion has claimed virtually the entire field of foreign affairs as falling under the president’s inherent authority. Although this image has surfaced from time to time since the early Republic, it did not fully and officially crystallize until Justice George Sutherland’s controversial, oft-cited 1936 opinion for the Court in United States v. Curtiss-Wright Export Corp. As construed by proponents of executive power, the Curtiss-Wright vision rejects two of Youngstown’s central tenets, that the National Security Constitution requires congressional concurrence in most decision on foreign affairs and that the courts must play an important role in examining and constraining executive branch judgments in foreign affairs.
One wonders if Harold has carefully read Justice Jackson’s Youngstown concurrence, or the majority opinion in the case by Justice Black. For both went to considerable lengths to emphasize that they were not endeavoring to constrain the powers of the President in dealing with the external world. At issue in that case was whether the President’s “war powers” empowered him to order the Secretary of the Interior to seize domestic steel mills – the private property of American citizens – in order to prevent a labor strike that might affect the availability of steel for the Korean War. (And keep in mind that the Fifth Amendment Guarantees that “[n]o person shall . . . be deprived of . . . property, without due process of law . . . .”)
There is no reason to believe that justice Jackson was in any way hostile to Curtiss-Wright as the appropriate foreign policy paradigm. On the contrary, just two years before Youngstown, Justice Jackson wrote for the majority in Johnson v. Eisentrager:
Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. . . . The issue . . . involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. United States v. Curtiss-Wright Corp . . . .
And consider this excerpt from Justice Black’s majority opinion in Youngstown:
The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces had the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.
Similarly, Justice Jackson in Youngstown was very deferential to presidential power with respect to the external world:
[N]o doctrine that the Court could promulgate would seem to be more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often is even unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign adventure. . . .
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. . . . Such a limitation [the Third Amendment] on the command power, written at a time when the militia rather than a standing army was contemplated as a military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy . . . .
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. . . . What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize person or property because they are important or even essential for the military or naval establishment.
Even more fundamentally, in Youngstown Justice Jackson actually cited Curtiss-Wright as authority, but then explained: “That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories . . . .” And as both Justice Black and Jackson repeatedly emphasized, Youngstown was an “internal affairs” case.
That is also the consensus of scholars like Professor Louis Henkin, who in Foreign Affairs and the Constitution noted:
Youngstown has not been considered a “foreign affairs case”. The President claimed to be acting within “the aggregate of his constitutional powers,” but the majority of the Supreme Court did not treat the case as involving the reach of his foreign affairs power, and even the dissenting justices invoked only incidentally that power or the fact that the steel strike threatened important American foreign policy interests.
Consider also the reaction of Justice Rehnquist, joined by Chief Justice Burger and two other members of the Court, in the 1979 dispute over President Carter’s constitutional power to terminate the mutual security treaty between the United States and Taiwan. Senator Goldwater had urged the Court to decide the case on Youngstown, but Rehnquist wrote:
The present case differs in several important respects from Youngstown . . . cited by petitioners as authority both for reaching the merits of this dispute and for reversing the Court of Appeals. In Youngstown, private litigants brought a suit contesting the President’s authority under his war powers to seize the Nation’s steel industry, an action of profound and demonstrable domestic impact. . . . Moreover, as in Curtiss-Wright, the effect of this action, as far as we can tell, is “entirely external to the United States, and [falls] within the category of foreign affairs.
Others may disagree, but my own sense is that The National Security Constitution is not a particularly useful contribution to the literature in this highly-specialized field. Indeed, my strong sense is that when the book was written Koh was totally unaware of the materials I have cited above from Washington, Jefferson, and all three authors of the Federalist papers. I may disagree as strongly with Lou Fisher on occasion, but he is a serious scholar in this area who has done his homework.
“Unchecked” Presidential Discretion
in the Conduct of War and Foreign Affairs
I have already noted John Jay’s explanation in Federalist No. 64 that the new Constitution had left the President “able to manage the business of intelligence as prudence may suggest,” and the Supreme Court’s 1936 declaration that “Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” These are clear references to exclusive and unchecked presidential power.
One of the great myths in the post-Vietnam separation-of-powers debates is the idea that Congress and the Judiciary are supposed to be able to “oversee” and “check” every presidential power in a Democracy. I sometimes wonder if modern legislators paid attention in law school during the discussion of the most famous of all cases, Marbury v. Madison. There, Chief Justice Marshall referred to the President’s unchecked constitutional discretion, and used his control over the Department of Foreign Affairs as an example:
By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . [A]nd whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
It is certainly true, as many have observed, that if neither Congress nor the Judiciary has a check or “negative” over presidential decisions, the risks of abuse of power and the exercise of poor judgment increase. If we allow the President to authorize the military to detain enemy combatants for the duration of hostilities without being charged with a crime or given a trial (which is an accepted part of the Law of Armed Conflict recognized by the Geneva Convention Relative to the Treatment of Prisoners of War and acknowledged by the Supreme Court in the Hamdi case), some innocent people may suffer. But it is even more obvious that by allowing the President to authorize the military to empower a private to use lethal force against someone believed to be an enemy combatant on the battlefield, there is a greater risk of mistakes that could lead to the tragic loss of innocent life. Similarly, occasions arise where the military launches missiles or other high-explosive ordinance against buildings or other structures based entirely upon intelligence information that those structures are being used to house enemy forces — and sometimes that information is inaccurate and innocent people lose their lives. Those lives might be spared if we required the private, or the commander who is about to authorize the firing of a cruise missile or the launching of a Hellfire missile from a Predator drone, to come before Congress or prove beyond reasonable doubt in a court of law that no innocent people will be harmed. Yet few serious people would prohibit our military from making battlefield decisions with the speed and dispatch long recognized to be essential for the effective conduct of military operations.
The Founding Fathers understood that success in war, intelligence gathering, and diplomacy depended on unity of design, secrecy, and speed and dispatch; and they vested authority to make the necessary decisions exclusively in the President save for those limitations clearly established by the Constitution itself – including the power of Congress to control expenditures from the Treasury and the creation of military forces, and a variety of other checks expressly vested in Congress or the Senate.
Congressional and Senate “Negatives”
and Other Powers in these Areas
Others in this hearing will no doubt provide a complete list of all of the powers related to war and foreign affairs that are expressly vested in the Congress or the Senate in Article I, Section 8, and Article II, Section 2, of the Constitution. As I have already acknowledged, many of these are powers of tremendous importance.
I think it is also true that on occasion the Executive Branch fails to recognize some of the more esoteric “exceptions” to the President’s general grant of executive power over foreign affairs. To mention one example, I have no serious doubt that Congress has the constitutional power to pass legislation mandating the humane treatment of detainees during armed conflict. The Constitution expressly gives Congress the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” and to “make Rules concerning Captures on Land and Water . . . .” Yes, those are “exceptions” out of the general “executive” and “Commander in Chief” powers vested in the President, and thus, as already discussed, are to be construed strictly. But I can’t image the Supreme Court not recognizing this power even with a strict construction.
By refusing to create new military forces, rejecting appropriations requests for supplies and equipment for existing forces, and refusing to appropriate new funds for the armed forces, Congress clearly has the power to bring any major armed conflict to an end. The Constitution prohibits the President from spending Treasury funds without appropriations, and wars generally require a great deal of money.
I trust no one in this room would argue that the President may lawfully use the “power” he arguably possesses as Commander in Chief of the Army to order the First Armored Division to seize the gold from the Bullion Depository at Fort Knox and deliver it to the White House for the purpose of converting it to cash on international markets to fund the war in Iraq. One might contend that he has the “power” to accomplish that end, in the sense that – unaware of the ultimate purpose – military officers might well carry out apparently lawful orders to make it happen.
I mention this example, because it is certainly clear that Congress has the “power” – at least until the courts step in – to abuse its control over the nation’s purse strings to deny the President even his salary. To be sure, the Constitution provides that the President “shall receive” a compensation for his services which shall neither be increased nor decreased during his term of office, but before that compensation may be paid there must be an appropriation. And refusing to appropriate money to pay the President’s salary would be an abuse of power and a violation of the oath of office each of you took to support the Constitution. Nothing in the Constitution even arguably gives Congress the power to interfere with decisions involving, to quote Chief Justice Chase again, “the conduct of campaigns,” and deciding how many troops from among those forces “raised” by Congress are necessary to fight a war authorized by Congress – and where and how those forces should be deployed – is at the heart of the President’s constitutional power. This proposition in my view is not arguable.
Reconciling Congressional and Executive
Powers Pertaining to War
As the Supreme Court noted in Curtiss-Wright and many other cases, all constitutional powers “must be exercised in subordination to the applicable provisions of the Constitution.” So one of the issues we need to address this morning is how do we draw the line between the constitutional powers of Congress and those of the President.
Last June in the Hamdan decision, the Supreme Court quoted with favor a portion of Chief Justice Chase’s concurring opinion in what it described as “the seminal case of Ex parte Milligan. Speaking for the majority, Justice Stevens was primarily concerned with presidential power over tribunals, so for our purposes it is useful to include some language that was only partly quoted in Hamdan. Chief Justice Chase wrote:
Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.
The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns . . . .
I believe Chief Justice Chase correctly reconciled the relevant powers in this case. And if so, it seems obvious that Congress has no power to tell the President he cannot send another 20,000 or 100,000 troops to Iraq. Any effort to do so in a legally-binding manner would be futile and a further act of congressional lawbreaking.
Senator William Borah on the Power of Congress
to Usurp Constitutional Authority of the President
On the second floor of the Senate corridor to the U.S. Capitol Building there is a statute of Senator William E. Borah, the “Lion of Idaho” who was elected to 6 terms in the Senate and chaired the Foreign Relations Committee for eight years. A progressive Republican who biographers say was “known for his integrity” and independence, Borah is perhaps best known today for his leading role in blocking Senate consent to the ratification of the Versailles Treaty in 1917 that would have brought America into the League of Nations. The official Senate biography of Senator Borah notes that Time magazine once referred to him as the “most famed Senator of the century.” And his views are particularly relevant to today’s hearing, because he was such a strong isolationist and a champion of the constitutional prerogatives of the Senate. He understood that the Senate had a constitutional negative over a presidential decision to ratify a treaty, and in 1917 no Senator was more instrumental in exercising that power. But he also understood that the President had important national security powers that were not subject to congressional veto, and time and again he stood firm on principle.
Consider this excerpt from the Congressional Record of an exchange Senator Borah had on December 27, 1922, with Senator James Reed of Missouri. To place it in context, following the end of World War I President Wilson elected to keep many American troops in Germany to help maintain the peace. President Harding kept them there, and legislators here in Washington were getting angry letters from parents who wanted their sons home now that the war had been won. Both Senator Reed and Senator Borah shared that goal, and this colloquy occurred on the Senate floor:
MR. REED of Missouri. Does the Senator think and has he not thought for a long time that the American troops in Germany ought to be brought home?
Mr. BORAH. I do.
Mr. REED of Missouri. So do I . . . . Would it not be easier to bring the troops home than it would be to have the proposed [disarmament] conference?
Mr. BORAH. You can not bring them home, nor can I.
Mr. REED of Missouri. We could make the President do it.
Mr. BORAH. We could not make the President do it. He is Commander in Chief of the Army and Navy of the United States, and if in the discharge of his duty he wants to assign them there, I do not know of any power that we can exert to compel him to bring them home. We may refuse to create an Army, but when it is created he is the commander.
Mr. REED of Missouri. I wish to change my statement. We can not make him bring them home . . ., but I think if there were a resolution passed asking the President to bring the troops home, where they belong, the President would recognize that request from Congress.
An even more illuminating exchange occurred six years later, during consideration of a naval appropriations bill, when the Foreign Relations Committee chairman had this exchange with Senator John Blaine, a newly elected member from Wisconsin:
Mr. BORAH. Mr. President, the Constitution of the United States has delegated certain powers to the President; it has delegated certain powers to Congress and certain powers to the judiciary. Congress can not exercise judicial powers or take them away from the courts. Congress can not exercise executive power specifically granted or take it away from the President. The President’s powers are defined by the Constitution. Whatever power belongs to the President by virtue of constitutional provisions, Congress can not take away from him. In other words, Congress can not take away from the President the power to command the Army and the Navy of the United States. . . . Those are powers delegated to the President by the Constitution of the United States, and the Congress is bound by the terms of the Constitution.
Mr. BLAINE. Another question. All that the Senator has said in a general way is sound constitutional law, but before there can be any action on the part of any Government unit requiring the expenditure of funds that are in the Public Treasury, or that may be placed in the Public Treasury, Congress must first act and make an appropriation for every essential purpose. That money so appropriated can be used for no other purpose than that designated by Congress, and there is no power that can coerce Congress into making an appropriation. Therefore, Congress’s power over matters respecting the making of war unlawfully, beyond the power of the President outside of the Constitution or within the Constitution, or conducting hostilities in the nature of the war during peace time, can be limited and regulated under the power of Congress to appropriate money.
Mr. BORAH. Of course, I do not disagree with the proposition that if Congress does not create an army, or does not provide for an army, or create a navy, the President can not exercise his control or command over an army or navy which does not exist. But once an army is created, once a navy is in existence, the right to command belongs to the President, and the Congress can not take the power away from him.
After some additional discussion involving other participants, Senator Blaine returned again to his contention that Congress could control the President’s conduct as Commander-in-Chief by using its power over the purse:
Mr. BLAINE. Mr. President, just one other question of the distinguished Senator from Idaho [Senator Borah]. I know that ordinarily he does not hedge. I want to press him just once more to give us the value of his training as a constitutional lawyer. I repeat, assuming that Congress has created an army and has created a navy, after that is all done, then may Congress not limit the uses to which money may be put by the President as Commander in Chief in the operation and in the command of the Army and Navy?
The Senator has said that, of course, if we do not create an army and navy, then there is nothing over which the President has command. But we have an Army and a Navy. Can not Congress limit, by legislation, under its appropriation acts, the purpose of which money may be used by the President as Commander in Chief of the Army and Navy?
Mr. BORAH. I do not know what the Senator means by “purposes for which it may be used.” Undoubtedly the Congress may refuse to appropriate and undoubtedly the Congress may say that an appropriation is for a specific purpose. In that respect the President would undoubtedly be bound by it. But the Congress could not, through the power of appropriation, in my judgment, infringe upon the right of the President to command whatever army he might find.
The debate continued, and shortly thereafter, in response to another question, Senator Borah said:
[I]f the Army is in existence, if the Navy is in existence, if it is subject to command, he may send it where he will in the discharge of his duty to protect the life and property of American citizens. Undoubtedly he could send it, although the money were not in the Treasury. What the result would be in the future as to appropriations would be another thing. I do not challenge the proposition that by refusing to appropriate, the President may be affected in the exercise of his power to command. The Congress might also refuse to appropriate for the Supreme Court for marshals, but why speculate about fanciful things?
Finally, this exchange occurred between Senator Borah and Senator Henrik Shipstead, a first-term Senator from Minnesota:
Mr. SHIPSTEAD. I agree with the Senator in that and I do not want to take away from the President the power to use the troops to protect American life and property.
Mr. BORAH. The Senator could not take it away from the President even if he wanted to do so. It is a power which belongs to him. We can not take it away from him.
In my doctoral dissertation on “National Security and the Constitution” I demonstrate that this was the prevailing paradigm in all three branches throughout most of our history, but things change.
Posted on: Wednesday, January 31, 2007 - 01:05
SOURCE: Jerusalem Post (1-18-07)
The second holocaust will not be like the first. The Nazis, of course, industrialized mass murder. But still, the perpetrators had one-on-one contact with the victims. They may have dehumanized them over months and years of appalling debasement and in their minds, before the actual killing. But, still, they were in eye and ear contact, sometimes in tactile contact, with their victims.
The Germans, along with their non-German helpers, had to round up the men, women and children from their houses and drag and beat them through the streets and mow them down in nearby woods or push and pack them into cattle cars and transport them to the camps, where "Work makes free," separate the able-bodied from the completely useless and lure them into "shower" halls and pour in the gas and then take out, or oversee the extraction of, the bodies and prepare the "showers" for the next batch.
The second holocaust will be quite different. One bright morning, in five or 10 years, perhaps during a regional crisis, perhaps out of the blue, a day or a year or five years after Iran's acquisition of the Bomb, the mullahs in Qom will convene in secret session, under a portrait of the steely-eyed Ayatollah Khomeini, and give President Mahmoud Ahmadinejad, by then in his second or third term, the go-ahead.
The orders will go out and the Shihab III and IV missiles will take off for Tel Aviv, Beersheba, Haifa and Jerusalem, and probably some military sites, including Israel's half dozen air and (reported) nuclear missile bases. Some of the Shihabs will be nuclear-tipped, perhaps even with multiple warheads. Others will be dupes, packed merely with biological or chemical agents, or old newspapers, to draw off or confuse Israel's anti-missile batteries and Home Front Command units.
With a country the size and shape of Israel (an elongated 20,000 square kilometers), probably four or five hits will suffice: No more Israel. A million or more Israelis in the greater Tel Aviv, Haifa and Jerusalem areas will die immediately. Millions will be seriously irradiated. Israel has about seven million inhabitants. No Iranian will see or touch an Israeli. It will be quite impersonal....
It will all be over, for Israel, in a few minutes - not like in the 1940s, when the world had five long years in which to wring its hands and do nothing. After the Shihabs fall, the world will send rescue ships and medical aid for the lightly charred. It will not nuke Iran. For what purpose and at what cost? An American nuclear response would lastingly alienate the whole Muslim world, deepening and universalizing the ongoing clash of civilizations. And, of course, it would not bring Israel back. (Would hanging a serial murderer bring back his victims?)
So what would be the point?
Still, the second holocaust will be different in the sense that Ahmadinejad will not actually see and touch those he so wishes dead (and, one may speculate, this might cause him disappointment as, in his years of service in Iranian death squads in Europe, he may have acquired a taste for actual blood). And, indeed, there will be no scenes like the following, quoted in Daniel Mendelsohn's recent The Lost, A Search for Six of Six Million, in which is described the second Nazi action in Bolechow, Poland, in September 1942:
A terrible episode happened with Mrs. Grynberg. The Ukrainians and Germans, who had broken into her house, found her giving birth. The weeping and entreaties of bystanders didn't help and she was taken from her home in a nightshirt and dragged into the square in front of the town hall.
There... she was dragged onto a dumpster in the yard of the town hall with a crowd of Ukrainians present, who cracked jokes and jeered and watched the pain of childbirth and she gave birth to a child. The child was immediately torn from her arms along with its umbilical cord and thrown - It was trampled by the crowd and she was stood on her feet as blood poured out of her with bleeding bits hanging and she stood that way for a few hours by the wall of the town hall, afterwards she went with all the others to the train station where they loaded her into a carriage in a train to Belzec.
In the next holocaust there will be no such heart-rending scenes, of perpetrators and victims mired in blood (though, to judge from pictures of Hiroshima and Nagasaki, the physical effects of nuclear explosions can be fairly unpleasant).
But it will be a holocaust nonetheless.
Posted on: Tuesday, January 30, 2007 - 22:03
SOURCE: Chicago Tribune (1-30-07)
I went to college with Sen. Barack Obama. As best I can recall, I had one class with him. It was a sociology course, and he sat a few seats away from me. He was quiet, friendly and smart.
Now, if you believe the hype, he's a few straw polls away from becoming our next president. I'd be inclined to vote for Obama too, because I share his politics. But there's just one little problem: He's not qualified for the job. And that gives him something in common with a certain oil-drilling, baseball-team-owning, two-term governor from Texas.
I speak, of course, of George W. Bush in 2000.
Remember 2000? It was not so long ago. The Democrats nominated Al Gore, whose experience clearly qualified him for the White House: eight years each in the House, the Senate and the vice presidency. As if that wasn't enough, Gore had also published a book about the environment, "Earth in the Balance."
Just as clearly, Gore's opponent was unqualified to become our president. True, Bush served for six years as governor of Texas. But the Lone Star State places sharp limits on gubernatorial power, especially in budgetary matters. So Gov. Bush became famous for working a five- or six-hour day.
Before that, he ran Major League Baseball's Texas Rangers, with money put up by family friends; he also started a few oil businesses, with little success.
And, of course, he worked on his father's political campaigns.
Qualified for the White House? No way.
That's why The New York Times, in its October 2000 editorial endorsing Al Gore, wrote that Bush simply lacked presidential timber.
"He offers himself as an experienced leader who would end the culture of bickering in Washington and use wisdom and resoluteness in dealing with domestic social problems and international crises," the Times wrote of Bush. "But his resume is too thin for the nation to bet on his growing into the kind of leader he claims already to be."
Sound familiar? Like Bush in 2000, Barack Obama has pledged to end the partisan rancor that infects our national politics. He's a unifier, a healer, someone who will put the good of the nation first.
Perhaps so; I'd certainly like to believe it. But those of us who endorse Obama's politics should be the first to admit that he just doesn't have the preparation. At least Bush was the chief executive of a large American state, albeit one with a weak governor. Until now, Obama has been the leader of ... nothing.
Yes, he served eight years in the Illinois Senate; and yes, he has spent the last two in the U.S. Senate. He was also a law professor, a civil rights attorney and a community organizer. All admirable lines of work. But do they qualify you for the highest office of the land?
Here you might reply that Obama has the good sense to surround himself with able advisers who will compensate for his lack of experience and knowledge. Trouble is, that's precisely what Bush said in 2000. And liberals weren't persuaded. Especially in foreign-policy matters, The New York Times opined, Bush's weak background "cannot be erased by his promise to have heavyweight advisers."
And who were these advisers? Why, Donald Rumsfeld and Dick Cheney!
You don't have to be a raving left-winger to acknowledge that--all things considered--it has not worked out very well. Indeed, in the controversy over the Iraq war, nearly every Republican heavyweight in Congress has criticized Bush for his overreliance on Rumsfeld and Cheney.
Ah, but you'll say, Obama is different. He might not have the resume, but he has the "character" to be a great president. Again, that could be true. But it's also straight from the GOP playbook, circa 2000. Bush was a good person, we were told, a "regular guy" who would resist the wiles of inside-the-beltway politics. Democrats didn't buy that line the last time around. Why change our tune now?
In short, my fellow liberals, we cannot have it both ways. If George W. Bush was unqualified to be our president, Barack Obama is even more so. One day, I hope, the quiet young man who sat next to me in class will sit in the Oval Office. But that day is still a few years off, and none of us should be shy about saying so. Like our presidents, we need to learn from experience.
Posted on: Tuesday, January 30, 2007 - 15:13
SOURCE: LAT (1-28-07)
IMAGINE THAT on 9/11, six hours after the assault on the twin towers and the Pentagon, terrorists had carried out a second wave of attacks on the United States, taking an additional 3,000 lives. Imagine that six hours after that, there had been yet another wave. Now imagine that the attacks had continued, every six hours, for another four years, until nearly 20 million Americans were dead. This is roughly what the Soviet Union suffered during World War II, and contemplating these numbers may help put in perspective what the United States has so far experienced during the war against terrorism.
It also raises several questions. Has the American reaction to the attacks in fact been a massive overreaction? Is the widespread belief that 9/11 plunged us into one of the deadliest struggles of our time simply wrong? If we did overreact, why did we do so? Does history provide any insight?
Certainly, if we look at nothing but our enemies' objectives, it is hard to see any indication of an overreaction. The people who attacked us in 2001 are indeed hate-filled fanatics who would like nothing better than to destroy this country. But desire is not the same thing as capacity, and although Islamist extremists can certainly do huge amounts of harm around the world, it is quite different to suggest that they can threaten the existence of the United States.
Yet a great many Americans, particularly on the right, have failed to make this distinction. For them, the "Islamo-fascist" enemy has inherited not just Adolf Hitler's implacable hatreds but his capacity to destroy. The conservative author Norman Podhoretz has gone so far as to say that we are fighting World War IV (No. III being the Cold War).
But it is no disrespect to the victims of 9/11, or to the men and women of our armed forces, to say that, by the standards of past wars, the war against terrorism has so far inflicted a very small human cost on the United States. As an instance of mass murder, the attacks were unspeakable, but they still pale in comparison with any number of military assaults on civilian targets of the recent past, from Hiroshima on down.
Even if one counts our dead in Iraq and Afghanistan as casualties of the war against terrorism, which brings us to about 6,500, we should remember that roughly the same number of Americans die every two months in automobile accidents.
Of course, the 9/11 attacks also conjured up the possibility of far deadlier attacks to come. But then, we were hardly ignorant of these threats before, as a glance at just about any thriller from the 1990s will testify. And despite the even more nightmarish fantasies of the post-9/11 era (e.g. the TV show "24's" nuclear attack on Los Angeles), Islamist terrorists have not come close to deploying weapons other than knives, guns and conventional explosives. A war it may be, but does it really deserve comparison to World War II and its 50 million dead? Not every adversary is an apocalyptic threat.
So why has there been such an overreaction? Unfortunately, the commentators who detect one have generally explained it in a tired, predictably ideological way: calling the United States a uniquely paranoid aggressor that always overreacts to provocation.
In a recent book, for instance, political scientist John Mueller evaluated the threat that terrorists pose to the United States and convincingly concluded that it has been, to quote his title, "Overblown." But he undercut his own argument by adding that the United States has overreacted to every threat in its recent history, including even Pearl Harbor (rather than trying to defeat Japan, he argued, we should have tried containment!).
Seeing international conflict in apocalyptic terms — viewing every threat as existential — is hardly a uniquely American habit. To a certain degree, it is a universal human one. But it is also, more specifically, a Western one, which paradoxically has its origins in one of the most optimistic periods of human history: the 18th century Enlightenment.
Until this period, most people in the West took warfare for granted as an utterly unavoidable part of the social order. Western states fought constantly and devoted most of their disposable resources to this purpose; during the 1700s, no more than six or seven years passed without at least one major European power at war.
The Enlightenment, however, popularized the notion that war was a barbaric relic of mankind's infancy, an anachronism that should soon vanish from the Earth. Human societies, wrote the influential thinkers of the time, followed a common path of historical evolution from savage beginnings toward ever-greater levels of peaceful civilization, politeness and commercial exchange.
The unexpected consequence of this change was that those who considered themselves "enlightened," but who still thought they needed to go to war, found it hard to justify war as anything other than an apocalyptic struggle for survival against an irredeemably evil enemy. In such struggles, of course, there could be no reason to practice restraint or to treat the enemy as an honorable opponent.
Ever since, the enlightened dream of perpetual peace and the nightmare of modern total war have been bound closely to each other in the West. Precisely when the Enlightenment hopes glowed most brightly, wars often took on an especially hideous character....
Posted on: Sunday, January 28, 2007 - 22:18
SOURCE: Pittsburgh Post-Gazette (1-28-07)
Here's a good reason to oppose President Bush's proposed troop surge in Iraq: It won't work. We've already tried versions of this plan, and it has failed. There's no reason to believe it will succeed now.
Here's a bad reason to oppose the surge:"Iraqi culture" isn't ready for democracy. We shouldn't impose--or even encourage--a system of government or a way of life upon a culture that doesn't share it.
And here's why it matters: by invoking the invidious term" culture," we ignore vital differences among the Iraqis themselves. We caricature and demean an entire people, often in the guise of defending them.
What is a" culture," anyway? Anthropologists like Franz Boas and Margaret Mead developed the concept a century ago, to signify the bundle of values and habits that a given population shared. For many of their contemporaries, of course, only the West -- and only white people -- possessed culture. But Mr. Boas and Ms. Mead insisted that everyone had culture, and that no single one was inherently superior to another.
The culture concept was one of the great intellectual achievements of the 20th century, helping to undermine much of the racism and ethnocentrism that marred our own society. But the concept imposed distortions of its own, especially the absurd idea that every group had a single culture -- and that this culture imprinted itself on every individual in the same way.
Consider, again, the commonplace claim that"Iraqi culture" is inconsistent with"democracy." Tell that to Maysoun al-Demalouji.
Never heard of her? I didn't think so. Ms. al-Demalouji is a member of the Iraqi parliament and a former deputy minister of -- catch this -- culture. Her idea of Iraqi culture includes tolerance, free speech and human rights: in other words, the beliefs and practices of democracy.
As a minister, Ms. al-Demalouji fought to protect the Iraqi national dance troupe from threats of brutality and assassination. She also defended female fashion models, who were targeted by Islamist death squads as well as by conservative religious figures inside the government.
"Iraq is without a doubt an Islamic society, but Islam is not our only culture," Ms. al-Demalouji recently told The New York Times."All the other cultures are being denied by this government." Got that? Iraq is made up of many cultures, not just one. And we do violence to its diversity when we assume otherwise.
Aah, you might reply, but Ms. al-Demalouji is not a"real" Iraqi. She's a cultural half-breed, someone who sacrificed her authentic and indigenous Islamic heritage for the secular wiles of the West. Wrong. Iraq has a long and vibrant history of secular intellectual ferment, centered in the Al Mutanabbi section of Baghdad. Even during the totalitarian hell of Saddam Hussein's regime, writers in Al Mutanabbi published illegal tracts under fake names. Their culture was so renowned in the Arab world that it generated its own slogan:"Cairo writes, Beirut publishes, Baghdad reads."
Oh, you say, that's just Baghdad. Out in the provinces, everyone wants Islamic rule. You know the drill: women in veils, orthodox religion in schools, strict control of the arts. The authentic and traditional Iraqi culture, unadulterated by the West.
Wrong again. In 2004, Oxford Research International published a careful survey of Iraqi public opinion in 16 cities, including all of the nation's major geographic and ethnic regions. The result? Just 20 percent of Iraqis favored an Islamic state. Nearly three-quarters said they"strongly agreed" with the idea that Iraq should be a democracy.
I have no idea what the numbers would say now. Nor do I know what we can or should do about the morass in Iraq, which seems to get worse every day. But here's what I do know: If you say"Iraqi culture" is hostile to democracy -- or to freedom, or to tolerance, or to the arts -- it's you who is hostile to Iraq.
In America, this hostility is eminently bipartisan. We hear it on the right, where politicians and talk-show impresarios now ascribe our failures in Iraq to the"fact" that Iraqis don't share or want democratic values. Critics on the left make the same point in a different idiom, arguing that America has no right to"impose" or urge its distinctive political culture on anybody else.
This is cultural arrogance, dressed up as cultural sensitivity. It sets us up as the ultimate arbiters of"real" Iraqi culture, which is more complex and varied than any of us realize. Most of all, it discounts and degrades the millions of Iraqis who clearly want freedom and democracy. I don't know if we can help them attain it or not. But we'll never find out if we pretend that"Iraqi culture" is a singular entity--and singularly different from our own.
Posted on: Sunday, January 28, 2007 - 16:56
SOURCE: NYT (1-27-07)
WE hear constantly now about “our commander in chief.” The word has become a synonym for “president.” It is said that we “elect a commander in chief.” It is asked whether this or that candidate is “worthy to be our commander in chief.”
But the president is not our commander in chief. He certainly is not mine. I am not in the Army.
I first cringed at the misuse in 1973, during the “Saturday Night Massacre” (as it was called). President Richard Nixon, angered at the Watergate inquiry being conducted by the special prosecutor Archibald Cox, dispatched his chief of staff, Al Haig, to arrange for Mr. Cox’s firing. Mr. Haig told the attorney general, Elliot Richardson, to dismiss Mr. Cox. Mr. Richardson refused, and resigned. Then Mr. Haig told the second in line at the Justice Department, William Ruckelshaus, to fire Cox. Mr. Ruckelshaus refused, and accepted his dismissal. The third in line, Robert Bork, finally did the deed.
What struck me was what Mr. Haig told Mr. Ruckelshaus, “You know what it means when an order comes down from the commander in chief and a member of his team cannot execute it.” This was as great a constitutional faux pas as Mr. Haig’s later claim, when President Reagan was wounded, that “Constitutionally ... I’m in control.”
President Nixon was not Mr. Ruckelshaus’s commander in chief. The president is not the commander in chief of civilians. He is not even commander in chief of National Guard troops unless and until they are federalized. The Constitution is clear on this: “The president shall be 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.”
When Abraham Lincoln took actions based on military considerations, he gave himself the proper title, “commander in chief of the Army and Navy of the United States.” That title is rarely — more like never — heard today. It is just “commander in chief,” or even “commander in chief of the United States.” This reflects the increasing militarization of our politics. The citizenry at large is now thought of as under military discipline. In wartime, it is true, people submit to the national leadership more than in peacetime. The executive branch takes actions in secret, unaccountable to the electorate, to hide its moves from the enemy and protect national secrets. Constitutional shortcuts are taken “for the duration.” But those impositions are removed when normal life returns.
But we have not seen normal life in 66 years. The wartime discipline imposed in 1941 has never been lifted, and “the duration” has become the norm. World War II melded into the cold war, with greater secrecy than ever — more classified information, tougher security clearances. And now the cold war has modulated into the war on terrorism....
Posted on: Saturday, January 27, 2007 - 21:16
SOURCE: WaPo (1-24-07)
Americans are rummaging through the past for lessons to help us in Iraq. There’s just one problem: The two unsuccessful wars we’ve fought since World War II don’t teach the same lesson. In Korea and Vietnam, presidents had to salvage wars that had gone bad, and their decisions provoked fierce congressional opposition. But here the stories start to diverge. In Korea, Congress demanded that Harry Truman do more to win. In Vietnam, it wanted to keep Richard Nixon from doing too much. George Bush has clearly decided he won’t be the wartime leader who responds to setbacks by doing too little. He may be trying to learn from Truman’s mistakes—and there are plenty to learn from. Truman, after all, let Gen. Douglas MacArthur push far into North Korea because he couldn’t resist the idea of toppling a communist dictatorship. Unfortunately, there was another large communist country next door, and when Chinese forces poured across the border, the United States didn’t have enough troops to resist them.
So Truman, forgetting regime change, decided the United States would aim only to restore prewar battle lines. Gen. Omar Bradley, the chairman of the Joint Chiefs, described the new U.S. strategy as to “try to fight it out in general…without committing too great forces.” With the administration looking defeatist, all hell broke loose. MacArthur, fired by Truman for incessant talk of victory, returned to give his defiant speech to Congress. The speaker of the House called on the president to resign. Secretary of State Dean Acheson endured eight solid days of senatorial grilling.
Even so, Truman stuck to his military strategy, and before long the furor subsided. Yet the damage was enormous. While a truce was negotiated, U.S. forces suffered as many casualties as they had when the fighting was at full tilt. American policymakers wrestled for years with the legacy of a war they hadn’t tried to win. Communists across Asia were energized by seeing the world’s greatest power held in check. The war, Acheson said, “destroyed the Truman administration.”
Understandably, President Bush doesn’t want to repeat this history. For a president and his generals who consider success possible, deciding against an intensified effort is the hardest imaginable choice. It tempts a political backlash, military demoralization and strategic confusion.
But if this is what Korea teaches Bush, what about Vietnam? It’s too late for most of its lessons to help him. Right now, he is at the point in the drama where the defense secretary in charge of the war has been ousted, as Robert McNamara was in 1967; Establishment gray-beards have declared the effort hopeless, as Acheson and others did in 1968; and America is trying to shift the burden to its floundering ally, as Nixon began doing in 1969.
The Vietnam lesson the president needs to ponder most is that, although “Vietnamization” was an effective counterinsurgency strategy, in the end it didn’t matter. After U.S. forces left in 1973, South Vietnam’s survival depended on economic help, military equipment and occasional American airpower. But political support collapsed as soon as the “peace agreement” was signed. Congress outlawed any use of U.S. airpower, and assistance levels dropped sharply each year. When President Nguyen Van Thieu of South Vietnam visited the United States in 1973, hardly any of Nixon’s own Cabinet even showed up to see him.
Henry Kissinger has long insisted that Watergate kept the United States from helping South Vietnam, but President Bush should know the more dispiriting truth. Americans simply wanted nothing further to do with the place....
Posted on: Friday, January 26, 2007 - 22:14
SOURCE: NYT (1-24-07)
ISRAEL’S newspapers are rife with reports of a peace agreement secretly forged between Israeli and Syrian negotiators. Though both the Syrian and Israeli governments have denied any involvement in the talks, past experience shows that such disavowals are often the first indication of truth behind the rumors.
Certainly, there is nothing new about the details of the purported plan, which involves a staged Israeli withdrawal from the Golan Heights, occupied since 1967, and the full normalization of relations between Damascus and Jerusalem. Nor is there a precedent in the willingness of Israeli and Arab leaders to enter into direct discussions without the participation or knowledge of the United States.
What is new is the Bush administration’s apparent opposition to a Syrian-Israeli accord and the possibility that Israel, by seeking peace with one of its Arab neighbors, risks precipitating a crisis with the United States.
On more than one occasion, Israeli and Arab leaders have engaged in clandestine talks without informing the White House. In 1977, the envoys of Prime Minister Menachem Begin of Israel and President Anwar Sadat of Egypt quietly met and laid the groundwork for Sadat’s historic visit to Jerusalem and for the advent of the Egyptian-Israeli peace process. Only later, when negotiations snagged, did the parties turn to the United States and request presidential mediation.
In 1993, Israeli and Palestinian interlocutors, convening in Oslo, worked out the details of a peace arrangement and requested President Bill Clinton’s imprimatur on the accord only days before its signing. Jordan and Israel also asked Mr. Clinton to sponsor their peace treaty, initialed the following year, after they had independently agreed on its terms.
And in 2005, Prime Minister Ariel Sharon of Israel unilaterally ordered the evacuation of the Gaza Strip, a move widely welcomed as a stepping stone toward peace but from which the Bush administration, committed to the multilateral process stipulated by the “road map,” kept its distance. Syria and Israel have also exchanged peace proposals in the past, sometimes under American auspices, as in the 1991 conference in Madrid.
Yet even when the two sides negotiated bilaterally, as during the secret exchanges between Prime Minister Benjamin Netanyahu and Hafez al-Assad of Syria in the late 1990s, Washington approved of the contacts. American leaders agreed that the Syrian-Israeli track offered a promising alternative to the perennially stalled Israeli-Palestinian talks, and that achieving peace between the Syrian and Israeli enemies would open the door to regional reconciliation.
All that was before Sept. 11, however, and Syria’s inclusion, alongside Iran and North Korea, in President Bush’s “axis of evil.”...
Correction: January 25, 2007
An Op-Ed article yesterday, about Israeli-Syrian relations, misidentified the Bush administration’s label for Syria in 2002. Syria was described as a “rogue state”; it was not part of the original “axis of evil.”
Posted on: Friday, January 26, 2007 - 21:21
SOURCE: New Republic (1-25-07)
... The fact that Hillary Clinton has to sprinkle any Iraq speech with irrelevancies about how she won't leave American troops without armor is testament to the most perversely successful propaganda campaign in American history. And who's the figure most responsible for the absurdity? Our new, late, secular saint: the thirty-eighth president of the United States, Gerald Ford.
n 1970, during the Vietnam war, an amendment to the military procurement authorization act introduced by Republican Mark Hatfield and Democrat George McGovern proposed that, unless President Nixon sought and won a declaration of war from Congress, no money could be spent after the end of the year "for any purposes other than to pay costs relating to the withdrawal of all United States forces." Of course, withdrawing forces is not cutting funding for them (in fact, it might have turned out to be more expensive in the short term), and Hatfield-McGovern never got more than 42 votes in the Senate--even though, in its second go-round in 1971, 73 percent of the public supported it.
The first time the Senate actually voted to suspend funding for American military activities in Vietnam was in the summer of 1973, two months after the last American combat brigades left, by the terms of a peace treaty Nixon negotiated. That amendment passed by a veto-proof majority--encompassing Republicans and Democrats, conservatives and liberals--of 64 to 26.
Peace was not quite at hand in Vietnam. The corrupt, incompetent, and hardly legitimate South Vietnamese government in Saigon was fighting for its life against the advancing Communist forces from the North. Early in 1974, Nixon requested a support package for the South Vietnamese that included $474 million in emergency military aid. The Senate Armed Services Committee balked and approved about half. A liberal coup? Hardly. One of the critics was Senator Barry Goldwater. "We can scratch South Vietnam," he said. "It is imminent that South Vietnam is going to fall into the hands of North Vietnam." The House turned down the president's emergency aid request 177 to 154; the majority included 50 Republicans. They were only, as I wrote in The New Republic ("The Unrealist," November 6, 2006), honoring what Nixon and National Security Adviser Henry Kissinger privately believed. They had gladly negotiated their peace deal under the assumption that South Vietnam would fall when the United States left. What would it have cost to keep South Vietnam in existence without an American military presence? The Pentagon, in 1973, estimated $1.4 billion even for an "austere program." Nixon and Kissinger were glad for the $700 million South Vietnam eventually got (including a couple hundred million for military aid), because their intention was merely to prop up Saigon for a "decent interval" until the American public forgot about the problem. By 1974, Kissinger pointed out, "no one will give a damn."
Apparently, they didn't tell Gerald Ford. He addressed the nation in April of 1975, eight months after becoming president, and implored Congress for $722 million in military aid. The speech was overwhelmingly and universally unpopular--the kind of thing that made Ford seem such a joke to the nation at the time. Rowland Evans and Robert Novak called it "blundering." Seventy-eight percent of the public was against any further military aid; Republicans like James McClure of Idaho and Henry Bellmon of Oklahoma opposed the appropriation. Republican dove Mark Hatfield said, "I am appalled that a man would continue in such a bankrupt policy"--and Democratic hawk Scoop Jackson said, "I oppose it. I don't know of any on the Democratic side who will support it." The Senate vote against it was 61 to 32.
Leading up to the vote, however, Saint Gerald made extraordinary claims--saying that "just a relatively small additional commitment" to Vietnam (compared with the $150 billion already spent there) could "have met any military challenges." With it, "this whole tragedy"--the imminent fall of Saigon--"could have been eliminated."
So much for the Pentagon's claim that $1.4 billion would be an "austere program." So much for Nixon and Kissinger's belief that "South Vietnam probably can never even survive anyway." Ford's miraculous $722 million somehow became enshrined in public memory as the margin that assured American dishonor. As Laird put it in that Foreign Affairs essay, "[W]e grabbed defeat from the jaws of victory. ... We saved a mere $297 million a year and in the process doomed South Vietnam, which had been ably fighting the war without our troops since 1973."...
Posted on: Thursday, January 25, 2007 - 22:31
SOURCE: Middle East Quarterly (1-25-07)
Jimmy Carter's engagement in foreign affairs as a former president is unprecedented in U.S. history. Because he regards the Arab-Israeli conflict as among Washington's most important foreign policy topics, he has written more than two dozen articles and commentaries about the conflict, eight in the past year alone. In these publications, Carter uses his credibility as a former president, Nobel laureate, and key player in the September 1978 Camp David accords and the Egypt-Israel peace treaty to unfold his set of truths and often to criticize U.S. policy. He relishes the role of elder statesman and believes that with his accrued wisdom and experience, he can contribute to solutions.
But Palestine: Peace Not Apartheid, Carter's twenty-first book and his second to focus on the Arab-Israeli conflict, is deficient. He does what no non-fiction author should ever do: He allows ideology or opinion to get in the way of facts. While Carter says that he wrote the book to educate and provoke debate, the narrative aims its attack toward Israel, Israeli politicians, and Israel's supporters. It contains egregious errors of both commission and omission. To suit his desired ends, he manipulates information, redefines facts, and exaggerates conclusions. Falsehoods, when repeated and backed by the prestige of Carter's credentials, can comprise an erroneous baseline for shaping and reinforcing attitudes and policymaking. Rather than bring peace, they can further fuel hostilities, encourage retrenchment, and hamper peacemaking.
"Remember Ken, Only One of Us Was President"
I first met Carter at a 1982 reception welcoming him to Emory University. He invited me to serve as the Carter Center's first permanent executive director, a position I held between 1983 and 1986, and as the center's Middle East fellow, an association I continued until December 2006 when I resigned that post over both the inaccuracies in Palestine: Peace Not Apartheid and its message, which contradicts the Carter Center's founding purposes.
My tasks as Middle East fellow included writing memoranda for Carter about Middle Eastern issues, taking notes at virtually all Carter meetings that addressed Middle Eastern issues, preparing a monthly analysis of events, coordinating major Middle East conferences, and planning Middle Eastern trips. I accompanied Carter as a political adviser and press liaison on three lengthy Middle Eastern trips in March 1983, March 1987, and March 1990.
As we collaborated on The Blood of Abraham, Carter's first book about the Middle East, I witnessed Carter's passion, determination, and stubbornness. He was capable of absorbing vast amounts of information, and he had an extraordinary capacity to recall detailed points and concepts almost verbatim months after reading them.
Carter's preferred method in writing the book was to lay a brief and somewhat selective historical foundation for each chapter and emphasize the contemporary. I sought to anchor each chapter more deeply in history and political culture. He had little patience for precedent or laborious recapitulation of history. Too often it interfered with his desire to find action-oriented solutions, which befit his training as an engineer. For Carter, history and ideology bestowed unwanted moorings and unnecessary rigidities; they shackled the pragmatism and flexibility of the would-be negotiator.
Our relationship was honest. We established a mutual respect and capacity to criticize each other. He asked me not to hold back. I often pressed him on balance, especially when, throughout the 1980s, he criticized the Israeli government repeatedly for obstructing renewed negotiations. While writing The Blood of Abraham, we argued over word choice, phrases, and claims. Once, when I disagreed too strenuously, Carter impishly smiled and, with his blue-eyes twinkling, said, "Remember, Ken, only one of us was president of the United States." Still, he always listened.
While Carter is a regular guest lecturer in my classes, I last sat down with him for a substantive talk in June 2002. At that meeting, I showed Carter a map of Israeli settlements in the West Bank and Gaza, emphasized the protective aspect of the separation fence that was then being constructed, and suggested that the ensuing division might contribute to the achievement of a two-state solution, something we both sought. Carter viewed the fence as proof that the Israeli government sought to wall in the Palestinians. Several days after our meeting, he wrote an op-ed condemning the U.S. government's alignment with Israel and Washington's unwillingness to pursue talks with Palestinian leaders. His commentary came against the backdrop of White House demands to make engagement conditional upon a Palestinian cessation of terrorism.
The Roots of Carter's Anger
Carter's grievance list against Israel is long: He believes the Israeli government's failure to withdraw fully from the West Bank is illegal and immoral; he condemns settlement construction; and he lambastes its current human rights abuse in the West Bank, which he labels "one of the worst examples of human rights abuse I know." From the time he was president, he has criticized Israel's confiscation of Palestinian land, usurpation of water rights, and retaliatory bulldozing of Palestinian houses. Such policies, he has argued, are responsible for the moribund Palestinian economy. Carter holds particular animus toward the security barrier, first proposed by the late prime minister and Nobel Peace Prize winner Yitzhak Rabin, as the latest example of what he believes to be a policy of de facto annexation of the West Bank.
Carter sees the Israeli-Palestinian conflict as the root of both U.S. unpopularity in the region and the wider problem of Middle East instability. Once the historic injustice done to the Palestinians is resolved, he believes, other issues plaguing U.S. foreign policy will dissipate, if not disappear.
Carter believes the conflict's resolution to be simple: After the Israeli government agrees in principle to withdraw fully from the West Bank, a dedicated negotiator like himself can usher in an independent, peaceful Palestinian state. That this has not happened is, in Carter's view, primarily due to the legacy of late Israeli prime minister Menachem Begin, not the fault of poor Palestinian decision-making or the Palestinian embrace of terrorism. The intransigence of Begin and his successors, Carter believes, was compounded by a failure of U.S. political leaders to pressure the Israeli government to correct its policy. Washington's failure to lead, he believes, is heavily due to the failure of American supporters of Israel to criticize the Jewish state.
Carter believes that if the U.S. government reduces or stops its support for Israel, then the Jewish state will be weakened and become more malleable in negotiations. His underlying logic is based upon an imperial rationality that assumes Washington to have the answer to myriad issues besetting Middle Eastern societies. This plays into the notion in Arab societies that the cause of their problems lies with Western powers and other outsiders. Palestine: Peace Not Apartheid will feed that belief.
In the book, Carter does not mention the counterproductive judgments made by Palestinian leaders or their embrace of terrorism over the last many years. While nineteenth- and twentieth-century European, Ottoman, Arab, and Zionist leaders all sought at various times to stifle Palestinian self-determination, the claim that the establishment of a Palestinian state rests only in the hands of Jerusalem and Washington is rubbish. By adopting so completely the Palestinian historical narrative, Carter may hamper diplomatic efforts enshrined in the "Road Map" and elsewhere that attempt to compel the Palestinian leadership to accept accountability for its actions. In pursuing this path, Carter violates the advice he gave eighty Palestinian business, religious, and political leaders on March 16, 1983, when, speaking to a gathering at the U.S. consulate in Jerusalem, he said, "Unless you take your own destiny into your own hands and stop relying on others," you will not have a state.
Carter's distrust of the U.S. Jewish community and other supporters of Israel runs deep. According to former national security advisor Zbigniew Brzezinski, "Carter's feelings on Israel were always ambivalent. On the one hand, he felt Israel was being intransigent; on the other, he genuinely had an attachment to the country as the ‘land of the Bible.'"
In a 1991 research interview with Carter for my book Heroic Diplomacy: Sadat, Kissinger, Carter, Begin and the Quest for Arab-Israeli Peace, Carter recollected that:
"[Vice president] Fritz Mondale was much more deeply immersed in the Jewish organization leadership than I was. That was an alien world to me. They [American Jews] didn't support me during the presidential campaign [that] had been predicated greatly upon Jewish money ... Almost all of them were supportive of Scoop Jackson—Scoop Jackson was their spokesman … their hero. So I was looked upon as an alien challenger to their own candidate. You know, I don't mean unanimously but ... overwhelmingly. So I didn't feel obligated to them or to labor unions and so forth. Fritz … was committed to Israel … It was an act just like breathing to him—it wasn't like breathing to me. So I was willing to break the shell more than he was."
The gap between many American Jews and Carter grew during his presidency as Carter increased pressure on Jerusalem. In the 1980 general election, Carter received a lower proportion of Jewish votes than any Democratic presidential candidate since 1920.....
Posted on: Thursday, January 25, 2007 - 21:07
SOURCE: TomDispatch.com (1-25-07)
When we hear about the American dead in Iraq, we normally learn about the circumstances in which they died. Last Saturday, for instance, was, for American troops, the third bloodiest day since the Bush administration launched its invasion in March 2003 -- 27 of them died. Twelve went down in a Blackhawk helicopter over Diyala Province, probably hit by a shoulder-fired missile. Five died under somewhat surprising and mysterious circumstances. They were attacked in a supposedly secure facility in the Shiite city of Karbala by gunmen who, despite their telltale beards, were dressed to imitate American soldiers and managed to drive through city checkpoints in exceedingly official-looking armored SUVs. They could, of course, have been members of Muqtada al-Sadr's Mahdi Army, but were probably Sunni insurgents from a neighboring province. The rest of the Americans in that total died as a result of roadside bombs (IEDs) around Baghdad or fighting with Sunni insurgents, mainly in al-Anbar Province. The Pentagon announcements on which such news is based are usually terse in the extreme. The totals, 29 dead for the weekend (as well as hundreds of Iraqis), did, however, become major TV and front-page news around the country.
These deaths are presented another way in the little, black-edged boxes you see in many newspapers. (My hometown ledger, the New York Times, has one of these almost every day, placed wherever the humdrum bad news from Iraq happens to fall inside the paper and labeled,"Names of the Dead.") These, too, are taken from the Pentagon death announcements, which offer the barest of bare bones about those who just died. But they do tell you something that should be better noted in this country.
Take the Pentagon announcements for Iraq" casualties" from January 11th through January 23 -- 21 dead in all, 17 from the Army, 2 from the Marines, and 2 from the Navy (one in a"non-combat related incident" in Iraq, the other in Bahrain).
Then just check out their hometowns. Remove a few obvious large metropolitan areas, or parts thereof -- Boston, El Paso, Jacksonville, Irving (home of the Dallas Cowboys), and Irvine (California) -- and here's the parade of names you're left with:
Temecula (California), Henderson (Texas), San Marcos (Texas), Lawton (Michigan), Cambridge (Illinois), Casper (Wyoming), Richwood (Texas), Prairie Village (Kansas), Ewing (Kentucky), Wisconsin Rapids (Wisconsin), Redmond (Washington), Peoria (Arizona), Brandenburg (Kentucky), Sabine Pass (Texas), and Cathedral City (California).
A couple of these like Peoria (pop. 138,000) and Casper (pop. 52,000) are small cities. Others like Lawton (1,800) or Richwood (3,200) have the populations of small rural towns. On the face of it, if you were to intone this litany of the home places of the dead, it would minimally qualify as a list of the forgotten places of America, the sorts of hometowns you would only know if you had grown up there (or somewhere in the vicinity).
Are Sabine Pass or Cambridge, Illinois (not Massachusetts), or Wisconsin Rapids small towns in rural America? Probably, though any one of them (like Temecula) could, in fact, be a suburb of some larger urban area. Still you get the point. Go read the Pentagon death notices yourself, if you doubt me on where the dead of this war seem to be coming from.
As it happens, though, we don't have to rely on the anecdotal or the look of the names of the places from which the American dead have come. Demographer William O'Hare and journalist Bill Bishop, working with the University of New Hampshire's Carsey Institute, which specializes in the overlooked rural areas of our country, have actually crunched the numbers in an important study that has gotten too little attention. Matching a data set from the Department of Defense listing the dead and their hometowns against information from the White House Office of Management and Budget on which counties in this country are metropolitan, they found that the American dead of the Iraq and Afghan Wars do indeed come disproportionately from rural America. Quite startlingly so.
According to their study, the death rate"for rural soldiers (24 per million adults aged 18 to 59) is 60% higher than the death rate for those soldiers from cities and suburbs (15 deaths per million)." Of rural areas, Vermont has the highest rate of casualties, followed by Delaware, South Dakota, and Arizona. Only 8 of our states have higher urban than rural death rates.
Demographer O'Hare, who himself grew up in the small Michigan town of Flushing, tells Tomdispatch:
"We know that soldiers from rural America are dying at higher rates than those from urban America, strikingly higher, 60% higher. We know, from other research, that the rural young join the military at higher rates than those from metropolitan areas. The dearth of opportunity in rural areas simply leaves more young people there with fewer alternatives to the military.
"Dozens of case studies show that opportunities are moving away, part of a long-term shift. The opportunity differential between rural and urban America is probably higher now than at any time in the past. Our study highlights the price some young folks and their families are paying for lack of opportunity in rural America."
What does this mean? Just over 3,000 Americans have died in Iraq. If the U.S. population is 300 million, then that's just 0.001% of it. Add into this the fact that the American dead come disproportionately from the most forgotten, least attended to parts of our country, from places that often have lost their job bases; consider that many of them were under or unemployed as well as undereducated, that they generally come from struggling, low-income, low-skills areas. Given that we have an all-volunteer military (so that not even the threat of a draft touches other young Americans), you could certainly say that the President's war in Iraq -- and its harm -- has been disproportionately felt. If you live in a rural area, you are simply far more likely to know a casualty of the war than in most major metropolitan areas of the country.
No wonder it's been easy for so many Americans to ignore such a catastrophic war until relatively recently. This might, in a sense, be considered part of a long-term White House strategy, finally faltering, of essentially fighting two significant wars abroad while demobilizing the population at home. When, for instance, soon after the 9/11 attacks the President urged Americans to go to Disney World or, in December 2006, to go "shopping more" to help the economy, he meant it. We were to go on with our normal lives, untouched by his war.
In an interview this week, the Newshour's Jim Lehrer asked the President the following:
"If it is as important as you've just said -- and you've said it many times -- as all of this is, particularly the struggle in Iraq, if it's that important to all of us and to the future of our country, if not the world, why have you not, as president of the United States, asked more Americans and more American interests to sacrifice something? The people who are now sacrificing are, you know, the volunteer military -- the Army and the U.S. Marines and their families. They're the only people who are actually sacrificing anything at this point."
And here was the President's pathetic but indicative answer:
"Well, you know, I think a lot of people are in this fight. I mean, they sacrifice peace of mind when they see the terrible images of violence on TV every night. I mean, we've got a fantastic economy here in the United States, but yet, when you think about the psychology of the country, it is somewhat down because of this war."
In other words, our President wants -- has always wanted -- most of us to do nothing whatsoever.
To put all of this in some kind of crude context, let's consider the Iraqi side of this horrific equation. Just recently, the United Nations announced that in 2006, approximately 34,000 Iraqi civilians were killed. As Jon Weiner pointed out at the Nation Magazine's"The Notion" blog, this was clearly an undercount. Not all the December 2006 figures for the civilian dead were even in when it was toted up; bodies that didn't make it to morgues or hospitals couldn't be counted; embattled areas where officials might have underreported couldn't be dealt with; and, of course, though we don't know how the UN separated combatants from noncombatants, the report"almost certainly omitted deaths of Iraqi policemen, soldiers, insurgent fighters, and members of private militias like the Badr brigade."
Nonetheless, if the Iraqi population is about 27 million, then even that one-year undercount represents more than 0.1% of it. If, as such figures do indicate, total Iraqi deaths since the invasion reached even the low end of the recent Lancet study's estimates -- that is, several hundred thousand dead (and they could well be far higher) -- then we are talking about a country that has already lost at least 1% of its population as direct casualties of the President's invasion and occupation. (Remove relatively peaceful Iraqi Kurdistan from the equation and these numbers will, of course, look worse.)
To take another crude measure of such things, sociologists sometimes claim that an average American knows approximately 200 people by their first names. So think of those 3,000 dead Americans, significantly from rural areas, as known on a first-name basis to 600,000 other people. (If you include the war wounded, of course, these figures would go far higher.) On the same exceedingly crude basis, those 34,000 dead Iraqi civilians of 2006 alone would have been known by 6,800,000 other Iraqis. If you add in the Iraqi wounded, those who have fled the country, those who have become internal refugees in the roiling civil war and ethnic cleansing of neighborhoods, there obviously can essentially be no one in Iraq who has escaped intimate knowledge of the ravages of the American invasion and occupation, and the insurgency and civil war that have followed.
In other words, you have a war launched by a country whose people, in a personal sense, can hardly know that it's going on and it's being fought in a country that has been taken apart and ravaged more or less down to the last citizen.
Or think of it this way: The forgotten rural American dead are the Iraqis of the American War. I leave you to wonder about what the Iraqi dead are.
This article first appeared on www.tomdispatch.com, a weblog of the Nation Institute, which offers a steady flow of alternate sources, news and opinion from Tom Engelhardt, a long time editor in publishing, the author of The End of Victory Culture, and a fellow of the Nation Institute.
Posted on: Thursday, January 25, 2007 - 17:28
SOURCE: Time (1-18-07)
... War gave birth to the U.S., but when the men who made the American Revolution went on to make a Constitution, they agonized over the rules for the new Republic's warmaking powers. They had no doubt that the state's very existence depended on its ability to field an armed force swiftly and effectively. Yet they also read history as a sorry record of warlords, monarchs and tyrants who exercised power arbitrarily. The founders meant to create a new political order in which sovereignty would reside not with the rulers but with the people, especially when it came to the fearsome sanction of military power.
Thus they invested in Congress--the most broadly representative and directly accountable branch of government--the authority to "declare War," to raise and support armies (while specifying that "no Appropriation of Money for that use shall be for a longer term than two years"), to "provide and maintain a Navy" and to summon into federal service, organize, arm and discipline the state militias. But they also anointed the President--theoretically, at least, somewhat insulated from popular whim by the Electoral College--as the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states" when called into national employ....
Nowhere has the fabled system of checks and balances proved more contentious. Because so much is at stake in questions of war and peace, the founders in effect crafted an invitation to perpetual conflict between Congress and the President. On no occasion has Congress compelled the President to undertake a military action against his will (although it came close to forcing John Adams to make war against France in the 1790s)--providing at least some support for the notion that the processes of democratic deliberation can help keep the peace. On some occasions Congress has served as a kind of sheet anchor, restraining or even extinguishing the martial urge. In the isolationist 1930s, for example, Congress passed several neutrality statutes, aimed at keeping Franklin D. Roosevelt from intervening in the brewing international crisis that finally erupted as World War II. And on only five occasions has Congress formally declared war--each time in response to a presidential request: the War of 1812, the war against Mexico in 1846, the Spanish-American War in 1898 and World Wars I and II.
But Presidents have consistently dominated this long-running political contest--conspicuously including F.D.R., who eventually wore down isolationist sentiment and took the country into World War II. And while there have been only five formally declared wars, the U.S. has deployed its armed forces abroad more than 200 times, usually with some kind of congressional assent or at least acquiescence--from Thomas Jefferson's naval expedition against the Barbary pirates of North Africa to numerous interventions in Central America and the Caribbean, as well as Vietnam, Afghanistan and Iraq....
Congress continues to wield the power of the purse, but if history is any guide, the legislators will have little stomach for withholding resources from troops already in the field. Once again the President will have the upper hand. Despite the founders' best intentions, the world's oldest democracy still has a chronically deficient mechanism for bringing democratic practices meaningfully to bear on the waging of war.
Posted on: Thursday, January 25, 2007 - 16:23
SOURCE: Time (1-18-07)
Barack Obama is the freshest face in the early lineup of presidential candidates. Is he too fresh? Would eight years in the Illinois state senate and four in the U.S. Senate qualify him for the Oval Office in 2008? American political history gives an answer: a resounding probably.
Thirty-seven men have been elected President since 1789, and the American people have applied two different standards in evaluating their achievements. The first was formulated by Alexander Hamilton, who test-drove the presidency in the Federalist papers. The difficulty of winning the job, he argued, virtually guaranteed it would be held by the best men. "Talents for low intrigue, and the little arts of popularity," could "elevate a man to the first honors in a single state." But only "characters pre-eminent for ability and virtue" could impress the nation as a whole. The first seven Presidents, who filled the job for almost a half-century, confirmed Hamilton's prediction. George Washington, John Adams and Thomas Jefferson were heroes of the American Revolution. James Madison was the prime mover in the push to write and ratify the Constitution. James Monroe and John Quincy Adams had signal diplomatic triumphs: Monroe bought the Louisiana Territory from Napoléon Bonaparte, doubling the country's size, and Adams, as Monroe's Secretary of State, conceived the Monroe Doctrine, which waved Europe off the western hemisphere. Andrew Jackson, the frontier warrior, beat the Creek Indians in the old Southwest and the British in New Orleans.
It was not until the eighth President, Martin Van Buren, that America aimed lower. Van Buren was a smooth self-made man from upstate New York who clambered to leadership first in his state, then in the Democratic Party nationwide. He was a wire puller and wheeler-dealer. Former President John Quincy Adams praised his "calmness," "gentleness" and "discretion," though not his "profound dissimulation" and "fawning servility." Van Buren was a pol, first, last and always. He showed that intrigue and the art of popularity were now enough to win the White House. Since 1841, most successful presidential candidates have passed the Van Buren test. The electorate wants leaders who have played the game, even if they haven't been All-Stars. It's a low but sensible hurdle; Obama qualifies by that standard.
Voters also don't take kindly to nonpoliticians: two businessmen, Wendell Willkie and Ross Perot, made serious runs for the White House, although neither came close. Americans will elect a political neophyte only if he passes the Hamilton test of pre-eminent ability. Ulysses S. Grant and Dwight Eisenhower had never held elective office, but they won their wars. Some Presidents pass both tests: Theodore Roosevelt fought well in the Spanish-American War and in New York State politics. Among the prospective 2008 candidates, only one has shown pre-eminent ability: Rudy Giuliani, in solving the crime problem in the nation's largest city and in his response to 9/11.
But is pre-eminent ability a reliable predictor of success? It doesn't guarantee victory at the polls. Henry Clay was a master of legislative finesse who helped broker the Missouri Compromises of 1820-21, a deal between slave states and free states that kept the two sides from each other's throats for 30 years. Yet he failed to become President in three tries. ...
Posted on: Thursday, January 25, 2007 - 16:14
SOURCE: Boston Globe (1-18-07)
LAST WEEK'S attack by a top Defense Department official on lawyers representing Guantanamo detainees raises an issue Americans have visited many times before -- an issue that was familiar to our Founding Fathers.
On March 5, 1770, a group of British Regulars, on guard duty in a hostile Boston, opened fire on an unarmed but threatening group of civilians, killing five and wounding more. Known as the "Boston Massacre," the event was a godsend to patriot propagandists, such as Samuel Adams. In fact, it was a textbook example of how military mistakes can aid insurgencies. The commander of the British detachment, a Captain Preston, and some of his men were charged with murder.
Among the Boston Sons of Liberty were John Adams, who went on to become our second president, and his first cousin, Josiah Quincy Jr., a sickly but brilliant patriot. Both were lawyers, newly started on their careers. To the horror of Quincy's father, a wealthy and distinguished citizen, Quincy and Adams decided to represent Captain Preston and his men.
Quincy's father wrote to him: "I am under great affliction at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of their fellow citizens. Good God! Is it possible? I will not believe it."
Quincy's father went on to warn his son that this decision would be "destructive of your reputation and interest" as a young lawyer, a true professional disaster.
Four days later, Quincy replied to his father: "Lest such be told, Sir, that these criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation . . ."...
Today, as in the McCarthy era, we are beginning to hear threats against the careers of lawyers who represent unpopular clients and "enemies." When Cully Stimson, deputy assistant defense secretary for detainee affairs, suggested last week that CEOs should pressure law firms to stop representing Guantanamo prisoners, he sent a shudder through the legal profession. His comments represented a real threat to all suspects' right to counsel. It takes a lot to risk livelihood for principle, particularly when lawyers are representing controversial clients pro bono. But we do not have to look far for inspiration. The cold courage of our Founding Fathers shows the way.
Posted on: Wednesday, January 24, 2007 - 01:51
SOURCE: Sandstorm, the blog of Martin Kramer (1-23-07)
On Monday, January 22, I gave this address to the Herzliya Conference, an annual Israeli gathering for high-level soul-searching. The title of the panel (not of my choosing):"Knowing Thy Enemy: Decision-Making Processes of Regional Adversaries."
My role here this morning is to serve as a proxy for"the enemy." Now it might have been more interesting to invite"the enemy" and have him speak for himself. But Israel has so many enemies that one wouldn't know quite where to start. And once one goes beyond"enemy" to include"regional adversaries," as our panel title does, the list grows long. Then if I define these adversaries from a dual perspective, American and Israeli, the list becomes a who's who. It includes states like Iran and Syria, an array of Islamist movements, Sunni and Shiite, and insurgents and terrorists of all stripes. As someone once said, friends come and go, but enemies accumulate.
In a mere ten minutes, then, all I can do is give you a flavor of how Israel and the United States might look to a composite enemy, someone you couldn't invite because he doesn't exist. And to get you in the proper mood, I'll do it in first person. I know it's hard, but imagine me as some sort of composite of Ahmadinejad, Nasrallah, Osama bin Laden, Bashar Asad, Muqtada as-Sadr, and Khalid Mash'al. You'll admit it's a good disguise; good enough to get me through the security cordon outside this hall.
In the name of God, the Compassionate, the Merciful. I'm flattered that you wish to know me better. As it happens, the phrase"know thy enemy" isn't in our Holy Quran, but it comes from the ancient Chinese general Sun Tzu. The full quote goes like this:"Know thy enemy and know yourself; in a hundred battles, you will never be defeated. When you are ignorant of the enemy but know yourself, your chances of winning or losing are equal. If ignorant both of your enemy and of yourself, you are sure to be defeated in every battle."
Now it's true that your societies are self-critical. The purpose of your famous conference is to look hard at yourselves. We follow it most closely, for what it tells us of your strengths and weaknesses. This self-knowledge works in your favor. But fortunately for us, your knowledge of us is deeply flawed. That's the prime reason why you've been losing every other battle.
It's not that you don't understand our decision-making processes. Your intelligence agencies probably have a good idea of who answers to whom in Damascus and Tehran, and among our brothers in Hamas, Hezbollah, the Sunni mujahidin in Iraq, and Al-Qaeda. What you don't begin to understand is how we see the world.
To summarize your problem in a sentence: you don't give us credit for having what you have, which is vision. In America and Israel, you keep your greatest thinkers in tanks, where they come up with grand visions and strategies. These minds produce fresh ideas of how to engineer a"new Middle East" to your liking. Then you give these ideas imposing names: the peace process, globalization, democratization. Your ideas usually fail, but you keep generating them, because you have a sense of destiny. And your destiny, so you think, is to remake the world in your image.
Too often, you aren't prepared to give us credit for having visions of our own. And when you overhear snippets of our own big ideas—a map without Israel, a resurrected caliphate, and so on—you say: oh, that's not really serious. No, you assure yourselves, all that the Muslims want is that we address some of their grievances and accommodate a few of their interests. A gesture by you here, a concession by you there, and before you know it, you think you've turned us into your servants.
We find it amusing how you persuade yourselves that just one more gesture, just one more concession, is all that's needed to impose your will.
Here are some examples we've collected from your press, mostly from Haaretz. If only Israel would give up the Shebaa Farms, our brethren in Hezbollah would surrender their weapons. If only our imprisoned fighters were released by Israel, we would allow your"peace process" to be renewed. If only the United States would wink at Syria over the Golan, our brother Assad would ditch Iran. If only Iran were given economic incentives, it would ditch its nuclear program. If only Hamas were recognized, it would recognize Israel in return. If only Israel acknowledged responsibility for the plight of the refugees, the Palestinians would shelve the"right of return."
And on and on. There's even someone at Harvard who claims that Al-Qaeda"is likely to bring an end to the war it declared in return for some degree of satisfaction regarding its grievances." Our brothers in Al-Qaeda felt insulted: just what do they have to do to be regarded as visionaries, and not as angry Arabs with so-called"grievances"?
Not a single one of these"if-thens" is true; time and again, we've told you so. Yet still you're disappointed when your"generous offers" are spurned. The offers are generous, so you think; but to us, such"generosity" is a mark of weakness, a signpost reassuring us that we're on the road to realizing our grand vision.
And we do have a grand vision. It's as deeply rooted in our hearts as the idea of liberty and freedom is rooted in yours. Our leaders, thinkers, intellectuals, and clerics have spread it to millions of people. Untold numbers are prepared to fight for it. It exists in several versions—Islamist, Arabist, nationalist. But in the end, all of these versions revolve around the same idea, and it's this:
We Arabs and Muslims can and must seize control of our destiny. This means wresting the Middle East away from America and its extension, Israel. Every move we make thus has the ultimate purpose of pushing you back, out, and away. We have no interest whatsoever in"final settlements" or a"new Middle East" that would fortify the status quo. We're out to defeat you—and to replace your vision with our own.
You may think this is impossible. We admit it: the Arab and Muslim world isn't a seat of great technological achievement. It struggles with poverty, illiteracy, and ignorance on a daunting scale. But our cadres have taken Sun Tzu to heart. We know ourselves, and we've made a careful study of you, from Bint Jbeil to Baghdad. We demand of our followers sacrifice, but we promise them victory, and we prepare for it. Of course we make mistakes; we're human too. But on balance, we've played a weak hand with skill, while you've played a strong hand ineptly.
Now you may enjoy a brief respite from us, because Sunnis and Shia are regrettably at each other's throats. Your diplomats whisper to you that this is an opportunity. Don't rejoice. If Sunnis and Shia can demonize and massacre one another—fellow Muslims who profess the same faith, speak the same language, share the same culture—what does this portend for you? The Sunni-Shia strife is a warning to you: our visions, our history don't ever go away, they always come back.
Let's set aside the Chinese general, and end with a quote from our own Bin Laden."When people see a strong horse and a weak horse, by nature, they will like the strong horse." He's right. We sense, not that you're weak, but that you're weakening. We see America's"wise men" produce an alternative plan for Iraq comprised of gestures to us, disguised under the thin euphemism of a"new diplomatic offensive." We hear America's best-placed foreign policy analyst declare that"the American era in the Middle East has ended." And Israel, defeated in the summer, now debates concessions and initiatives toward us, all of which suggest that Israel is anxious to forestall further defeats.
We know you will launch more offensives, to reverse your decline, or at least create the illusion of its reversal. We expect many"surges." We can't defeat you yet in a straight confrontation. But you are already defeating yourselves, in your think tanks, in your universities, in your editorial boardrooms, in the conclaves of your"wise men."
Finally, you ask us about the place of Iran's nuclear program in our vision. It's an excellent question. Unfortunately for you, Martin Kramer's time is up. We return him to you—unharmed.
Posted on: Tuesday, January 23, 2007 - 20:55
SOURCE: Weekly Standard (1-29-07)
Senator Hillary Rodham Clinton has returned from her visit to Iraq with a bold (if not entirely new) recommendation: Congress should vote to cap the number of U.S. forces the president can deploy to Iraq. (She notes that her demand has precedent in the experience of Lebanon in the early 1980s: Was she pleased with the results of that congressional intervention?) She thereby joins Senators Christopher Dodd and Barack Obama, among others, in the demand that Congress assume responsibility for operational military decisions--and, in fact, for the conduct of the war.
Clinton proposes, for no very clear reason, to cap the number of American forces in Iraq at their level as of January 1, 2007. America, of course, was not winning in Iraq on the first of this year, so such a resolution is, in fact, a resolution to accept defeat.
Oh, no, Democrats will say. They're simply for a political solution, not a military solution. But Democratic claims that Iraqis must immediately find a political solution to their political problems are laughable in the face of the violence in Baghdad. Abandoning American efforts to control the violence in Iraq would lead to an increase in violence. This would in turn reduce the odds of peaceful and constructive political discourse, and would further undermine any spirit of compromise between the competing Iraqi factions. Perhaps the deaths of hundreds of thousands of people and the forced migration of millions would eventually lead to a certain exhaustion. Is that the outcome Senators Clinton, Dodd, and Obama have in mind? It's a far cry from the Democratic party that insisted on sending American forces to stop ethnic cleansing in war-torn Bosnia in the 1990s, to the one that now declares an Iraqi bloodbath no concern of ours.
Beyond that, Clinton's statement completely ignores the significance of a congressionally mandated cap on troop strength. American forces are fighting in Iraq every day. They do not have enough strength to control the violence they are facing. The efforts of Clinton and others would prevent the new commander in Iraq, David Petraeus, from working effectively to bring the violence under control. There is every reason, therefore, to imagine that violence would continue to increase. This would be the effect of Sen. Clinton's legislation.
An increase in violence, furthermore, would place American forces in Iraq at greater danger as they move around the country (which they would have to do even if their role were restricted to training Iraqi troops, as some have demanded). It is easy to imagine circumstances in which it would be necessary to send more troops to protect Americans at risk in Iraq--which this resolution would forbid. Even if Senator Clinton demanded an immediate withdrawal of U.S. forces (and she claims she does not want that), there are many circumstances in which additional forces would be required to make it safe for American troops to leave. Why would Senator Clinton, or any other responsible person, wish to deny the commander in Iraq the ability to request forces necessary to ensure the safety of American soldiers?...
Posted on: Tuesday, January 23, 2007 - 20:04