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To Fund or Not to Fund
Published on Sunday, January 28, 2007 by the Minneapolis-St.Paul Star Tribune (Minnesota)
To Fund or Not to Fund
In 2002, Congress granted the president broad war power. It now has a chance to use the power of the purse to correct that mistake
by J. Brian Atwood
 
As the political struggle over our involvement in Iraq heats up in Washington, an unpleasant constitutional reality comes into focus. When Congress authorized the combat engagement of U.S. forces in Iraq, it granted the president extraordinary war powers as commander in chief. Short of a cutoff of funding for the military, Congress has limited legal power to constrain the president in the combat zone.

The U.S. Senate will soon debate a nonbinding resolution designed to convince the president that he should change course. Ultimately, Congress will have to resort to its power of the purse and pass legislation cutting off funding for Iraq if it wants to gain the leverage needed to force the White House to negotiate seriously with it.

Congress rushed to judgment in the fall of 2002, granting the legislative equivalent of a "declaration of war" on the basis of both erroneous assumptions about the threat posed and an abiding desire to clear the issue from the political agenda before the 2002 elections. Some members now argue that they were hoodwinked over the claims of weapons of mass destruction or the false charge that Saddam Hussein's government was working with Al-Qaida and was responsible for 9/11. This is reminiscent of the questionable Gulf of Tonkin incident, which provided the impetus for a congressional resolution authorizing a decade-long war in Vietnam. In both cases, Congress failed to delve deeply into the executive branch's case for war.

The founders saw Congress as the most important check against an aggressive executive branch. The original draft language of the Constitution gave Congress alone the right to "make war." This was changed to "declare war," on the basis that it might be necessary to grant the president emergency power to "repel a sudden attack" upon the United States.

The War Powers Resolution, passed in 1974 over a presidential veto, sought to reverse a century-old trend of presidents usurping the congressional role in declaring war. Regrettably, it contradicted the original constitutional design and required only that the president "consult" before sending forces into hostile situations.

The Supreme Court traditionally has been unwilling to intervene in this area of the constitution, seeing the debate over war powers as a "political" matter to be resolved between the other two branches. Still, one justice, Joseph Story, captured the founders' sentiment when he wrote in 1833 of the dangerous tendencies of republics to be "... too ambitious of military fame and conquest ... imbecile in defense, and eager for contest." While Story confirmed the reluctance of the court to arbitrate, he concluded that "It should therefore be difficult in a republic to declare war, but not to make peace."

Today, the White House argues that we are in a permanent "war against terrorism," requiring the use of extraordinary presidential power not only to use force to preempt attacks, but also to retain and interrogate prisoners without due process and to intrude on citizens' privacy. While few have challenged the use of the word in this context, this particular "war" has no constitutional or legal standing. Our collective fear of terrorism has led our republic into dangerous territory. This itself constitutes a victory for those who seek to terrorize us into taking irrational actions. Have we become Story's "imbecile in defense"?

For too long Congress has abdicated its constitutional role. In 2002, it easily slipped into authorizing a war with a foe we did not fully understand. In doing so, Congress granted the president broad power. As commander in chief, he is constitutionally required to take steps not only to help our forces carry out a well-defined mission, but also to protect them while in combat. Many recently retired military professionals have stepped forward to testify that he has done neither.

Congress now has an electoral mandate to correct the mistake it made in 2002. It is argued that a cutoff of appropriations would leave our forces without the means to defend themselves. This would be true only if the president insisted on keeping them in harm's way.

A republic, as Story observed, finds it difficult to resist the danger of war. Yet, a constitutional republic possesses the means to correct its mistakes. What Congress has given in authority to the president, it can take away, but only if it can muster two-thirds of both houses to overcome an expected veto. As was the case at the end of the Vietnam War, let us hope that rational representatives of both branches of government can find a way to safely disengage from the morass of Iraq's sectarian strife through a process of negotiation.

J. Brian Atwood is dean of the University of Minnesota's Humphrey Institute of Public Affairs. He worked on the war powers resolution in 1974 as adviser to Sen. Thomas Eagleton, D-Mo.

©2007 Star Tribune.

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