I would only add, on a generally cynical note, the truism that: Power is what Power does. In other words, even in a constitutional republic like ours, the lines are not always clearly drawn, and Power means "doing whatever you can get away with."
Bush clearly took this lesson to heart with his presidential "signing statements" and disregard of Congressional legislation, warrantless spying and disregard of the FISA courts, foreign renditions and disregard of international law, and disregard of habeus corpus rights for terror suspects.
Bush can do all these things because no one has the guts to tell him he can't. It's really that simple.
Managing war
Wednesday, March 14, 2007 | International Herald Tribune
Walter Dellinger and Christopher Schroeder
The debate that Congress needs to have about the Iraq war is being hijacked by sound-bite arguments. Defenders of President George W. Bush concede that Congress has "the power of the purse" and insist it could use it to completely "cut off the funds to the troops." But that, most of them say, is the only power Congress has to change the course of the war. They then insinuate that exercising this power would be an unspeakable act of disloyalty to U.S. soldiers, leaving them without supplies, ammunition or pay. Congress is thus placed in a box: It has a single awesome power that it would never employ.
There are at least three errors in this line of argument. First, Congress is hardly limited to this seemingly magical power of the purse. It has several sources of constitutional authority over the use of military force, including the express right "to make rules for the government and regulation of the land and naval forces."
When Congress decides, for example, to limit warrantless surveillance of telecommunications, it does not need to say: "No funds appropriated under this act may be used for a search unless a warrant has been obtained." It may instead simply require the executive branch to obtain a warrant.
True, restrictions on spending are often attractive to Congress, because they can be attached to essential spending bills that a president may not be willing to veto. But when the debate gets turned to the spending power, it has been soured by the second false claim: that using the power of the purse would somehow leave the troops high and dry in Iraq.
Suppose that Congress did decide that military forces financed by future defense appropriations acts would, after a certain date, have to be deployed elsewhere than Iraq. Such a requirement would not cut a single penny of support for the troops in Iraq before the redeployment date, or for those same troops redeployed outside Iraq after that date.
How could that possibly be seen as "cutting off" support for our fighting men and women? Only if a president chose to violate both the congressional provision that the troops were to be redeployed and the laws providing for the pay, benefits and support of those in the military. Why would a president do something so perverse? Bush wouldn't. Thus this claim — that he would be forced to defy the law by sending "unfunded" troops into combat — is simply a false threat intended to curtail meaningful debate.
The third incorrect precept in the Iraq debate is the notion that while Congress could bring our troops home via its spending power, it lacks the ability to limit the size of the deployment: It is all or nothing.
Proponents of this argument ignore longstanding executive branch legal opinions as well as Supreme Court precedent. The Supreme Court has long recognized Congress' authority to set limits on the president's military power, as in 1799 when it accepted Congress' power to authorize the seizure of ships going to, but not coming from, French ports.
More important, the legal advisers of presidents have themselves repeatedly recognized this congressional power. When former Chief Justice William Rehnquist was President Richard Nixon's chief legal adviser in 1970, he flatly rejected the all-or-nothing claim. Rehnquist cited numerous historical examples, including a 1940 law prohibiting the deployment of drafted soldiers outside the Western Hemisphere. More recently, under President Clinton, we in the office of legal counsel repeatedly recognized congressional authority to limit the scope of military engagements.
The all-or-nothing argument defies not only precedent but common sense. Consider this scenario: Congress authorizes the president to send 20,000 American troops to a strife-torn country as part of a coalition to defend refugee camps from ethnic cleansing; however, once our forces are engaged, the president unilaterally decides to vastly increase our involvement by sending 350,000 combat troops to fight for one side in a religious civil war in that country, leaving the refugees undefended.
Surely no one really thinks that in such a situation Congress would be faced with this stark choice: Withdraw entirely from a country, or do nothing about the unlimited expansion by presidential fiat. Whatever limits there are on congressional power to determine tactical questions, decisions about the scope and goals of military action are easily within its authority.
One final debate-stifling claim deserves mention: the argument that even to debate our troops' mission in Iraq somehow undercuts and endangers them. Surely this has it backward. Four years have passed since the Iraq war resolution was passed, in very different circumstances for purposes no longer relevant. We certainly owe those who put their lives on the line every day a renewed determination of whether their continued sacrifice is necessary for the national interest.
Walter Dellinger is a lawyer. Christopher Schroeder is a professor at Duke Law School. Each served as head of the Justice Department's Office of Legal Counsel in the Clinton administration.
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