Lieberman amendment -- I almost forgot!

by Kagro X

I just wanted to highlight something that I was reminded of when reading this fine post on the Lieberman amendment (and Russ Feingold's explanation of why he would vote for something like that).

In order to set it up properly, let's take a look at what Feingold had to say:

While I don’t agree with Senator Lieberman when it comes to Iraq, his amendment having to do with Iran offered yesterday was not controversial because it basically just required a report on Iran’s role in Iraq and any responses by the US government.

Dover Bitch, the author of the post at Hullaballoo I was reading, had this to say:

I'm stunned by this response, and not just because it's from Feingold. Apparently, the addition of this clause has convinced senators like Harry Reid that the bill is benign:

(d) Nothing in this section shall be construed to authorize or otherwise speak to the use of Armed Forces against Iran.

I'm stunned, too, but for a reason in addition to the excellent catalog compiled by Dover Bitch.

What stuns me about it is that anyone could feel reassured by this language knowing that the "administration" (with an assist from John Yoo) believes the AUMF was unnecessary, anyway:

The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

"Acknowledged." Not "authorized."

This is something I wrote about back in January:

[John Yoo wrote that] the AUMF is "an express affirmation of the President's constitutional authorities by Congress." Not an authorization to use force, then, but an affirmation. An affirmation of what? That the power to use military force exists independent of this (or any other) act of Congress.

A quick scan of the entire document, in fact, will reveal that Yoo does not even deign to use the title of the act in question, "Authorization for Use of Military Force," probably because that would imply that the act actually is an authorization, not just an affirmation of existing authority drawn directly from the Constitution. Instead, he simply refers to it as the "Joint Resolution," and nothing else.

The next part of the conclusion that'll jump out at you is this:

 

Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas.

If military action need not be limited to those individuals, groups, or states that participated in the attacks of September 11th, then they're not even paying attention to the AUMF. It doesn't even figure in their game plan. You can repeal it ten times over without making a dent in their "reasoning."

To continue with Yoo's conclusion:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents.

"Congress has recognized the President's authority." Not granted it. Recognized it.

Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

If neither statute can place any limits on the President's powers, then neither can their repeal. "These decisions... are for the President alone to make."

So if that last section in the Lieberman amendment is supposed to be some kind of a safeguard, well, considering that the "administration" believes the AUMF wasn't what actually authorized the use of force against Iraq, then you'd have to color me slightly less impressed with the ability of that addition to constrain the use of force against Iran.

Needless to say, the same applies for the Warner-Lugar pablum, as well.

Comments

[orionATL]

damn

outfoxed again

(see the last sentence of think progresses' "on the heels of senate's iran vote...").

the only thing that is going to stop these guys is citizen insurrection.

the democrats in congress can't do the job;

the republicans won't.

but one caution,

recall that that the debate on invading iraq (not called that at the time),

consumed public attention and public debate from 2002 through the november 2002 congressional elections.

is the sudden very public appearance of the "bomb iran" issue

a misdirection?

or

an indicator of additional presidential folly in the making?

recently i read that a third carrier was headed for the gulf of hormuz.

true?

what gives?

[prostratedragon]

Outfoxed? Well, maybe, but then again, …

I must say, these two votes are the most disturbing news I've heard in quite a long while. (I was born after WWII.) Something really fishy here, which might or might not have to do with anything so obvious as aircraft carriers moving about. I'm a little more worried about some folks' guts right now, frankly.

[DeanOR]

So Congress can say words like "declare war", but they can't actually "make" war. The President can make war (on the basis of his sole decision and his sole judgment that we need to defend against terrorists), doesn't need a declaration, and a declaration is just words anyway. No further attack on the US is necessary to make pre-emptive war, no further debate, no authorization.
PNAC, neo-con all the way.
And the Administration decides what the Constitution means and acts accordingly, making it all nice and legal.
I guess by submitting war funding requests to Congress, Bush has acknowledged that Congress does have some authority, but they have rolled over compliantly every time so far.
Terrific. The Pres invades, bombs, etc. at will, and the Congress is not going to take the risk of withholding funding thereby depriving the troops of bullets on the world-wide "battlefield" once the Pres has already begun to "make" endless war through his inherent authority (sort of like the Divine Right of Kings?)

[tekel]

DeanOR: Terrific. The Pres invades, bombs, etc. at will, and the Congress is not going to take the risk of withholding funding thereby depriving the troops of bullets on the world-wide "battlefield" once the Pres has already begun to "make" endless war through his inherent authority (sort of like the Divine Right of Kings?)

As Yoo has pointed out in his book, this is not a new theory, and in limited circumstances it might even be correct. Hamilton argued some 200+ years ago that the very wording of Article II gave the President the inherent powers to interpret and to terminate treaties at his own discretion and without the consent of the Senate. The difference is that Hamilton made the argument to keep the US out of the Napoleonic wars, whereas Yoo, as a proxy of PNAC and the NeoCons, made the argument to to get us INTO an unnecessary war and to defend Bush's illegal treatment of the un-people at Guantanamo.

I think this is an example of Hamilton deciding that the ends would justify the means, never guessing how his argument would later be abused by future Presidents.

As for presidents starting wars without congressional approval, that too has happened before and is probably even the correct interpretation. However, the Framers must never have anticipated how difficult and slow it would be to attempt an impeachment. Some of us have been complaining that Bush is guilty of high crimes for at least three or four years now... it's really just in the last 18 months or so that a majority of the American public has begun to feel the same way.

[Dover Bitch]

Excellent point, Kagro X. You reminded me that I also forgot an important element in this disastrous piece of legislation: It essentially activates an intelligence-gathering operation by the military, which greatly increases the risk of conflict by virtue of actual human engagement. More here.

[Boo Radley]

Thanks Kagro X. It looks to me as though the Bush WH is convincing the Democrats that the only way to lock in (relatively inexpensive) Saudi oil (Sunni majority) is to reconstitute Kissinger's Sunni counterweight to Iran (Shia). The fact that Feingold went along with this signals that Democrats will refuse to hold Bush responsible for destroying that Sunni counterweight in the first place (Sunni Iraq). How the US caused Kurdish control of the northern Iraq oil fields plays out in this is not immediately clear to me.

[bill_here]

If the amendment is such a good idea, why doesn't it include reporting on the same activities of other countries in the area as well?

[Mauimom]

Could this be an oversight or f***-up by Feingold? Has anyone given his office a jingle, asked to speak to the Legislative Assistant responsible for this area, and posed a few questions to see if this was thought out from all angles? Even better if you could voice your concern and get in via a district office in WI.

Most stuff on the Hill is done by aides, who then pass it to the Senator or Rep for his/her approval/changes, etc. Not every Congresscritter has time to be fully up on every issue. This is particularly true on the Senate side, where one has to cover an entire state.

Feingold is intelligent, and intellectually honest enough, to take another look at this and admit he made a mistake. Just needs to get the push and the underlying information to do so.

[R.H. Green]

Thank you for this article. It seems to me that the unitary executive advocates are not going to be impressed with logical or legal arguments as to the validity of their theories of power, but are only going to carry them out. However, if the legislature passes laws (or repeals them), they set precedents and leave a trail of legislative intent to curb the arbitrariness of the executive. When it comes time to hold the executive accountable, one simply points to the legislative record, to those acts that are in violation of that record, then impeach the executive for such violations. At present the executive is claiming that Congress has no jurisdiction in foreign policy and war) and it's laws are irrelevant, yet when it comes to impeachment procedings, the theories of Yoo and others are irrelevant. In other words, Congress says,"We told you not to do that without our permission, and you did it anyway; out you go". This doesn't stop a war on Iran, but gives us some recourse if it is pursued against our will.
The verbal wrangling of theoretical justification is irrelevant in impeachment, which is a political trial about fitness to govern. It would seem that the fact of believing in Yoo's theory might in itself constitute evidence of unfitness. (I guess this implies that believing in creationism, hell, even divinity, could constitute unfitness. Certainly madness would).
The republic may fall into the hands of rogues and knaves from time to time, but we have the capacity to deal with them. We don't have to wring our hands and cry about how we've been victimized. We instruct our representatives to act when we've had enough. Therein lies another problem (or two), but overall I think we need to make a distinction between an attempted power grab and a successful one. We are getting dangerously close to one, but I don't think we are there yet. I guess it depends on a) whether we've had enough, and b) whether our representatives will act.
I'm reminded of the words of Julius Caesar who sarcasticly noted (if memory serves) that the Senate kept giving him any power he asked for, noting that soon he'd have it all. They seemed content to let someone else make the big decisions, and let them play their games of local politics.

[Mimikatz]

Even someone like Feingold does not really see yet what we are dealing with in the case of Bsuh/Cheney. Here's one view (from Think Progress)on how close we are to war with Iran:

‘Bush is not going to leave office with Iran still in limbo.’ In a story entitled “Cheney pushes Bush to act on Iran,” The Guardian writes that Cheney may be winning the debate inside the White House over how to confront Iran:

The balance in the internal White House debate over Iran has shifted back in favour of military action before President George Bush leaves office in 18 months, the Guardian has learned.

The shift follows an internal review involving the White House, the Pentagon and the state department over the last month. Although the Bush administration is in deep trouble over Iraq, it remains focused on Iran. A well-placed source in Washington said: “Bush is not going to leave office with Iran still in limbo.”

[Powerpuff]

Do not forget, this amendment passed 97-0. No politician wants to be tarred with defending Iran, even against lying scum like Lieberman. The passage of this amendment should alert those who are putting all of their hopes for Iraq withdrawal and a reduction of US hostilities elswhere with the Democrats.