Saturday, February 17, 2007

War Powers: whose got 'em?

Funny thing, strict constructionalists on the Supreme Court refuse to take one part of the constitution literally: Article II, section 2:

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; he may require the Opinion, in writing of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

This statement is the only authority granted to the president in war and the making of war. If a person is to take this literally, doesn’t it sound more like the president suits up and literally goes to war? Doesn’t it sound more like he gets to devise the strategy of the advancing armies than total determination of the plans for war?

In Article I, section 8, we have the role Congress is to play in war and war-making:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as my be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

This is it. This is what our Constitution has to say about War Powers.

In shear volume, Congress looks like it plays a bigger role, doesn’t it? They define and punish, they declare War and raise and support Armies, they provide and maintain a Navy, and they compose the terms of regulation for the forces.

Does a picture start to emerge from all of this? Isn’t it obvious that the president doesn’t have extensive War Powers, nor does he get to decide the scope and terms of war?

What I thought of as I was reading this was of a prince or some such isolated and uninformed person of privilege who knocks on the big wooden door and is immediately granted an audience with the powerful ruling king. So he runs the length of a great hall and out of breath kneels before the sovereign power and asks: “My Lord, I have received word that there is a powerful army building in Iraq, and your territories are surely in jeopardy. If you would but grant me service to go forth and quell the insurrection, I shall forever be in your debt.” And after careful consideration, the king sends the whelp on his way with a division of the army. Perhaps the Constitution was written with this in mind, with the king replaced with Congress.

Another aspect that is dangerous for us is the current talk of distribution of power within the mainstream media. They have no doubt bought the suggestion that Commander in Chief really means king or Overlord of War. In this model, Bush is able to demand that he be authorized to do whatever the hell he wants outside our borders for an indefinite duration. Not only does that go against the principles of the Constitution, but it goes against the principles of a democratic republic. What is the purpose of such a Congress, then?

They also like to suggest that the only power that Congress possess is “the power of the purse” [this, of course is extracanonical and appears nowhere in the Constitution]. In this paradigm that they have forced on us is that the president runs and says whatever he wants to about the military and the only say Congress has is through budgets and funding. Why are they taking that so literally, but not “Commander in Chief”? If the role of Congress is to make war, fund the war, and maintain the faculties of war, then what power should the president really have? The role of Commander in Chief is actually a role of military strategist (which explains our historic love for generals and war heroes).

According to the above line of reasoning (and the language of the Constitution itself), I can come to no conclusion but that the president reserves no right to go to war or maintain a war. Congress leads us into war and the president leads us into battle. In Iraq, Congress took all of their power and granted it to the president. This cannot be overstated. It is as arrogant and irresponsible as it sounds. The president has claimed powers that he does not possess and has not been brought to heel by Congress. There is really no option left for the American people but to call for impeachment. The president, unregulated, has become a tyrant whose constant attempts to bring more power under the executive branch cannot be left alone, but addressed for what they are: an attempt to weaken democracy and replace it with fascist principles of government that centralize authority, eliminate checks and balances, and mitigate a type of individualistic rule. This, of course is made through fear of invasion both militarily (terrorists/Iraq/Iran) and socially (immigration/affirmative action), causing a xenophobia and racist division of people within the country. This gives the leader greater opportunity to determine the discourse.

This can all be resolved rather quickly: Congress need only remove the initial war authorization. This would properly rebuke the president in place of impeachment and would certainly bring the power of military action back under the deliberating and more democratic institution of the Legislative Branch. Now if only the war-hawking media would allow this to happen…

Republican Strategy of Avoidance #136

Deflecting the conversation away from its intensions.

The Republican playbook has an overt strategy of distraction, misrepresentation, and inappropriate disrespect for the rules of civilized debate. Not only do they not stick to the discussion areas, they are more than willing to shift the agreed-upon terrain midstream, pretending like that was the plan the whole time (Iraq was going to kill us, no, we wanted to free them, no, we want to democratize the Middle East, no, we need to root out the terrorists and smoke ‘em out of their holes).

But the true test comes in any of our debates.

Debate example 1:

Democrat: The president has not only deceived the American people, but he has broken the law by illegally wiretapping phones inside the country. There are provisions that must be followed that are reasonable, and the president didn’t follow them. He blatantly broke the law of the United States.

Of course there are many responses that can be made to this, and I’m not suggesting that defensiveness isn’t one of them. Of course I expect the president and his “handlers” to defend those actions. The problem is what comes next.

Bush: I needed to wiretap to get the terrorists. You don’t want to die, do you? The law is silly. It’s a bad law. I don’t like it. It restricts my ability to get the terrorists, see, so we need to get rid of it. Let’s write a new law. Make it legal.

The issue isn’t that he defended himself, but he deflected the talk from the issue (Bush broke the law) to a tangential issue (the merits of the law). This isn’t how proper debate is handled, nor is this how civil matters are resolved. Let’s play an example for the example: if I were charged with murder, the court examines the evidence against me as it relates to the law of the land. If I admit that I killed the other person, it would be up to the court to determine the tenacity of the crime and the severity of the punishment. Yes, debate would no doubt go into self-defense territory or accidental death (really anything to keep me out of jail). But the point of the convening court was to try me for the crime I committed. Merits of the law happen after the sentencing.

So in my first debate example, the issue on the table isn’t the merits of the FISA courts, it’s the severity of Bush’s crime and what an appropriate punishment should be. After the president is reprimanded for his crime, then we can decide the appropriateness of the law.

Debate example 2:

Democrat: First, the civilian leadership in the Pentagon is inept and poorly planned and executed the invasion and occupation of Iraq AND the occupation of Iraq is a disaster AND we were lied into war, therefore we must change course and extract our forces from Iraq as soon as possible.

There are many defenses thrown up for this one, but I should pick the most common and least helpful one.

Republicans: If you’re so smart, where’s your plan?

Aside flashback (Bush): “I’m the decider. I decide what we do.”

The issue on the table is not about future plans, per se, but about what has gone on up until now. The above argument clearly states that things must be changed and that the way YOU handled it is bad. The implication from the statement is, that since Bush is “the decider,” the Administration falsified intelligence brought before Congress, and the Republicans ramrodded a war authorization through Congress, the minority never expected a say. You made the mess, how are you going to clean it up?

In deflecting the issue from the foundation of the war—the very roots that not only made it happen but gird it and keep it intact—and onto a weak minority that has little say in the execution of the war, Bush and the Republicans not only sidestep their own persecution, but use that weakness to further persecute the Democrats in Congress.

This technique that I have shown you is not only bad argumentation, but it distracts the process from getting done what needs to be done. Right now, instead of helping people find good work and building up our economy, Congress has to debate whether or not to rebuke the president for being a jackass. This means that the work is being tied up for a week, just so a public statement can be made that nobody supports the president’s agenda in Iraq. Instead of having honest and proper debate over the last five years, we have had tyranny and irrational deflection.

Be on the lookout for this dangerous technique! It is as seamless and shifting as the sands of the desert!