Senators Biden and Levin invite us to pick our poison

The devil is in the details

By AcademicElephant Posted in Comments (15) / Email this page » / Leave a comment »

Offered as a postscript to streiff's earlier post

Yesterday was an interesting day for senate dynamics. Senator Joe Lieberman (I-CT) tossed a loaded gun onto the floor of the august chamber when he suggested in an interview that he would seriously contemplate switching parties (or rather changing his caucus, since I don't really see Mr. Lieberman becoming a Republican, just a R-aligned I) if his current colleagues made him "uncomfortable." As the day wore on, the source of Mr. Lieberman's potential discomfiture revealed itself. Senators Joe Biden (D-DE) and Carl Levin (D-MI) are crafting legislation designed to restrict the President's ability to set military strategy in Iraq. These two congressional geniuses are cooking up language designed to appear reasonable to the electorate and they're proposing the President should be limited to 1) fighting al Qaida in Iraq, 2) training Iraqi security forces and 3) "maintaining Iraq's territorial integrity." Combat troops engaged in other activities should be recalled over the next year.

Read on...

On the surface, the plan is appealing for, after all, who among us would oppose such a plan? And wouldn't we be protecting our troops from engaging in other dangerous activites? But there's a rub here. How precisely will these parameters be defined? And who will define them? General Petraeus and Admiral Fallon? Or Mr. Biden and Mr. Levin? And how will they be enforced? Should our soldiers be punished if they attack a suspected terrorist safe house/bomb-making facility/weapons cache if it is not demonstrably related to al Qaida (i.e. how much proof do you need that a bad guy is al Qaida? Does mere suspiscion, as in this case, count? Or would this sort of thing be judged by Mr. Biden and Mr. Levin as inappropriate action for US troops?)? Should they be prevented from participating in reconstruction efforts not related to the ISF? And what exactly does "maintaining Iraq's territorial integrity" mean? Border security alone? Will Mr. Biden and Mr. Levin limit this to defensive action? Will our forces find themselves in a position where they are so hamstrung by these nebulous rules that they become a passive and inactive--and so vulnerable--target for the enemy that is not under any such restrictions?

There's another nasty little aspect to the Biden-Levin plan: this will not be stand-alone legislation. It will be an amendment to a homeland security bill that will come before the Senate next week, so voting against it will mean voting against counter-terrorism measures. Perhaps it should not surprise us that Mr. Biden and Mr. Levin seek a win-win for their side here--either you hand the terrorists a victory in Iraq by undermining our effort there, or you hand the terrorists a victory in the US by undermining our efforts here.

Did I say "win-win"? Perhaps "lose-lose" would be a more appropriate phrase. "Pick your poison" might be an even better selection, as the choices proposed by the anti-war Democrats all look pretty deadly to me.

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Senators Biden and Levin invite us to pick our poison 15 Comments (0 topical, 15 editorial, 0 hidden) Post a comment »

he would announce ahead of the legilations, that if passed by Congress, he would ignore any restrictions on Military action as unconstitutional. However, given his past actions, I'm not too hopeful. Looks like Mitch McConnell will have to step up yet again.

You know the one-where Commodus is being told the story of a serpent in the ocean that sits and waits for its prey...as it nibbles and nibbles and "still, the serpent lies still"...

President Bush COULD be waiting until the prey commits itself. While other Presidents have been known to pre-emptively attack their political adversaries, this one has consistently waited until the last minute for that hail Mary pass...perhaps he is continuing his Commodus impersonation here.

Besides, there is little he can DO until there is a bill presented to him...in public purview at least. We will only know what he does behind the scenes when the Dims rail and moan about it for all to see.

haystack's 12th:
Conservatives (and Presidential Candidates especially) shall offer no aid and comfort to the opposition in times of legislative conflict (and ensuing political campaigns).

That it would be unconstitutional. Congress has the authority to declare war and grant peace. Congress must sign off on any treaty made. So if Congress redefines the terms of "war" then the President as Commander and Chief must follow those terms. The problem here is that this hasn't ever happened before. The executive branch has been given more and more power over the past 100 years so it would be rather interesting what the courts would say in effect.

I am guessing it wont matter anyways because Republicans will fillibuster anything like this. Also Republicans have had a great ability to stick together over these past few months. I have a feeling it would be voted down party lines (with Lieberman being only Ind Dem to join Republican).

Nowhere in the constitution does it give congress the right to determine how the war is conducted. That is the President's duty under his Powers as Commander in Chief. The courts really don't have any role here. This is a turf war between the congress and the President. Nowhere in the Constitution do the Courts get the right to referee disputes between the executive and legislative branch. The interesting point for constitutional scholars (and I'm certainly not one) is if Congress can undeclare war. They can certainly defund the war, but the Constitution gives the Presiden the authority to negotiate treaties ( i.e. treaty ending hostilities). Congress only gets the right to ratify or not ratify the treaty.

At the Supreme Court. It has ALWAYS been that way.

This is a "political question" in the context of Con Law and the Supreme Court wont touch it.

Interesting point on "war"... it is an undefined term.

Constitution gives Congress authority to declare war. So why isn't it a constitutional question? Supreme Court may not have to touch it but lower courts must touch it.

I don't have exact references handy and thought we've had about 2 undeclared wars for every declared war across our history, so I Googled it and according to wikipedia (I know, not a definitive source) we have had exactly 5 declared wars and 13 undeclared ones. The Supreme Court will stay out of this one on the basis that it is a political question even if the real reason is that there is no way they can come out ahead regardless of which way they rule.

I'm not a GOOD constitutional lawyer, and given just these bits I've provided and what I remember from my 7th grade civics class more than 30 years ago I can pretty much shred your arguments.

1) As noted elsewhere, Congress only gets to Declare War, they aren't authorized to fight it, and they aren't authorized to end them. The President is exclusively given the authority to negotiate treaties, while Congress is only required to Advise and Consent to them.

2) The President is charged with defending our nation against "all enemies, foreign and domestic." Constitutionally, that means he doesn't NEED a declaration of war to use the military to respond to a military attack against the US. Congress can continue to not declare war for as long as they want and the President still gets to be CIC, and remains charged with his responsiblities. This makes it self-evident that the War Powers Act is blatantly unconstitutional: You can't be responsible for something without having the authority to do so. This is the very basis of the Marshall decision by which the Court declared it has authority to review laws for constitutionality, and it can't overturn that without overturn its own authority. The WPA has not been challenged because most Presidents in office since its passage have had no need to, and Nixon was impeached soon after Congress overrode his veto of the act.

3) The established history of US conduct since the adoption of the consitutition establishes a precedent that the President has the authority to fight wars without a congressional declaration. While this may be a rebuttable presumption, it is nonetheless the presumption, and to win against it you need to present a strong case to do so. Your personal feelings aren't a strong case, nor is playing footsie with the language.

Now, Congress can vote to defund the troops, as that is THEIR consitutional perogative. But they can only defund the troops, not declare peace. Defunding the troops can force us to withdraw, and maybe even force us to surrender. But defunding the troops also means taking a clearly defined stand. Something politicians (from both parties) these days seem unwilling to do, no matter how dire the need.

Nixon was never impeached. He resigned under the threat of impeachment.

Article III cases and controversy requirement - there needs to be a justiciable issue. Infighting between congress and President will not trigger a judicial inquiry. Congress is limited in its action against a President (read impeachment). Once the impeachment train gets on the track, the Constitution spells out the process - which does not include the Supreme Court stepping in to make a call.

The Supreme Court is not going to make a decision that could be questioned or disregarded - that would weaken their institution. If Supreme Court decided President power was limited to a certain point, but there was no Constitutional basis for the limitation placed by the SC, President could disregard, SC would have no course of action against the President, and the "sanctity" of SC decision would be diminished... they are not going to put themselves in that position.

Want to be President?
What a pair of jokes they are.

...Senator Plugs and Senator Comb-Over running together on the Hair Club ticket.

--
"We can all do our part to save the planet by dying." - R.E. Finch

"And wouldn't we be protecting our troops..."
I have heard or read this statement so many times lately (no offense, AE; I know how you meant it) that the very concept is becoming legitimized with a life of its own. Congressman Tom Davis of Virginia made the point in his speech suppporting the SurrenderPhaseOne resolution, that we should protect the troops.
This thinking is completly backwards and needs to be countered every single time it is trotted out. It is the duty and responsibility of the troops to protect us. That is why the military exists!

Yes, the pervailing narrative is that our troops are conscripted lambs being sent to an immoral and illegal slaughter and we (or They Who Know Better in DC) have to step in to protect them. Once that narrative is in place, Biden and Levin have a much easier sell.

"I'm kind of old-fashioned. I like to engage my brain before my mouth." Donald Rumsfeld

can gyrate and gymble and do all their little treasonous back-stabbing manoeuvers, but the American people will hold them accountable for their lack of support for the troops.

When treason rules the land, none dare call it treason.

 
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