thedrifter
01-30-07, 07:58 PM
Does Congress have power to stop war?
By Rick Maze - Staff writer
Posted : Tuesday Jan 30, 2007 15:42:23 EST
A panel of constitutional scholars said Tuesday that Congress clearly has the power, if it chooses to use it, to stop the war in Iraq.
The difficulty in exercising the power is political, not constitutional, in getting a veto-proof majority in the House and Senate to agree on binding legislation to either cut off funding for combat operations or repeal the previously passed authorization to use force, the legal experts said in testimony before the Senate Judiciary Committee.
Sen. Russ Feingold, D-Wis., who chaired the hearing, said he will introduce a bill tomorrow that would cut off funds for U.S. forces in Iraq within six months, with one exception: “for a limited number of U.S. troops who must remain in Iraq to conduct targeted counterterrorism and training missions and protect U.S. personnel.”
“By prohibiting funds after a specific deadline, Congress can force the president to bring our forces out of Iraq and out of harm’s way,” Feingold said.
Most of the attention in the Senate has been devoted to dueling nonbinding resolutions, which are purely symbolic, with the White House saying it won’t pay any heed to opposition to sending 21,500 additional troops to Iraq. If a resolution passes — and that is no sure thing — and it is ignored, opponents have talked about taking the next step of trying to stop military operations.
The Bush administration has criticized members of Congress opposed to the buildup of troops, saying to question the president’s strategy, and work on resolutions and legislation to undermine the strategy, emboldens the enemy and hurts the troop morale.
The notion of hurting troops by talking about ending the war has irked some members of both political parties. Sen Arlen Specter, R-Pa., said under the constitution the president is “not the sole decider” on national issues.
“We have shared powers,” he said, adding that a public debate about war “is the price of democracy.”
Constitutional scholars said there are limits to presidential and congressional powers. Congress can, as it has in the past, restrict funding or repeal a previous authorization, but the president has direct control over the military.
Duke University law professor Walter Dellinger, a former U.S. solicitor general, said the president generally has complete authority over the military as long as Congress is “silent,” but the situation “is quite different when Congress has acted.”
He also said an act of Congress does not have to be an all-or-nothing decision about war, but could set limits, such as troop caps or funding limits.
However, congressional powers also are limited. “To take a hypothetical example, if Congress were to enact a law providing that no American soldier could be sent into combat without body armor, there would be a strong argument that such an enactment impermissibly interferes with the commander-in-chief’s discretion to order lightly armed or lightly equipped troops to proceed by stealth into battle in appropriate circumstances,” said Bradford Berenson, a former White House associate counsel. “Or, if Congress purported to forbid the president from sending particular units to Iraq, that, too, would likely be an unconstitutional infringement of the president’s power as commander-in-chief.”
Berenson, who helped the Bush administration shape policy on using military commissions to try detainees, creating of the Department of Homeland Security and going after financing for terrorist networks, said he believes Congress could terminate the Iraq war if it could override a presidential veto.
There are gray areas, Berenson said, noting that the president has emergency powers than could override a congressional edict. For example, if U.S. troops were attacked on the last day of the six months of authorized deployment under the proposed Feingold bill, Berenson said he believes the president would have constitutional power to keep troops beyond the deadline.
Ellie
By Rick Maze - Staff writer
Posted : Tuesday Jan 30, 2007 15:42:23 EST
A panel of constitutional scholars said Tuesday that Congress clearly has the power, if it chooses to use it, to stop the war in Iraq.
The difficulty in exercising the power is political, not constitutional, in getting a veto-proof majority in the House and Senate to agree on binding legislation to either cut off funding for combat operations or repeal the previously passed authorization to use force, the legal experts said in testimony before the Senate Judiciary Committee.
Sen. Russ Feingold, D-Wis., who chaired the hearing, said he will introduce a bill tomorrow that would cut off funds for U.S. forces in Iraq within six months, with one exception: “for a limited number of U.S. troops who must remain in Iraq to conduct targeted counterterrorism and training missions and protect U.S. personnel.”
“By prohibiting funds after a specific deadline, Congress can force the president to bring our forces out of Iraq and out of harm’s way,” Feingold said.
Most of the attention in the Senate has been devoted to dueling nonbinding resolutions, which are purely symbolic, with the White House saying it won’t pay any heed to opposition to sending 21,500 additional troops to Iraq. If a resolution passes — and that is no sure thing — and it is ignored, opponents have talked about taking the next step of trying to stop military operations.
The Bush administration has criticized members of Congress opposed to the buildup of troops, saying to question the president’s strategy, and work on resolutions and legislation to undermine the strategy, emboldens the enemy and hurts the troop morale.
The notion of hurting troops by talking about ending the war has irked some members of both political parties. Sen Arlen Specter, R-Pa., said under the constitution the president is “not the sole decider” on national issues.
“We have shared powers,” he said, adding that a public debate about war “is the price of democracy.”
Constitutional scholars said there are limits to presidential and congressional powers. Congress can, as it has in the past, restrict funding or repeal a previous authorization, but the president has direct control over the military.
Duke University law professor Walter Dellinger, a former U.S. solicitor general, said the president generally has complete authority over the military as long as Congress is “silent,” but the situation “is quite different when Congress has acted.”
He also said an act of Congress does not have to be an all-or-nothing decision about war, but could set limits, such as troop caps or funding limits.
However, congressional powers also are limited. “To take a hypothetical example, if Congress were to enact a law providing that no American soldier could be sent into combat without body armor, there would be a strong argument that such an enactment impermissibly interferes with the commander-in-chief’s discretion to order lightly armed or lightly equipped troops to proceed by stealth into battle in appropriate circumstances,” said Bradford Berenson, a former White House associate counsel. “Or, if Congress purported to forbid the president from sending particular units to Iraq, that, too, would likely be an unconstitutional infringement of the president’s power as commander-in-chief.”
Berenson, who helped the Bush administration shape policy on using military commissions to try detainees, creating of the Department of Homeland Security and going after financing for terrorist networks, said he believes Congress could terminate the Iraq war if it could override a presidential veto.
There are gray areas, Berenson said, noting that the president has emergency powers than could override a congressional edict. For example, if U.S. troops were attacked on the last day of the six months of authorized deployment under the proposed Feingold bill, Berenson said he believes the president would have constitutional power to keep troops beyond the deadline.
Ellie