Lieberman Is Right: Iraq Bringing On Constitutional Fight Over War Powers

New Britain area citizens will have an opportunity to express their views on U.S.-Iraq policy on Saturday, February 24th from 2 to 3:30 p.m. at South Church, 90 Main Street, New Britain, as part of a statewide network of meetings organized by Connecticut Opposes the War. In the following post, NB Politicus says it’s time for Congress to go beyond nonbinding resolutions and to invoke all the provisions of the War Powers Act of 1973.

To most of his constituents Senator Joe Lieberman was wrong to join 34 other senators in blocking debate on a U.S. Senate resolution opposing the Bush Administration’s troop surge in Iraq. Lieberman, John McCain and slightly more than one-third of the 100-member senate succeeded in cutting off debate on a nonbinding action that, if allowed, would have been a bipartisan vote of no confidence in Bush.

Lieberman, however, was probably right about one thing during the rare weekend Senate session. The Iraq quagmire could trigger a constitutional crisis between the executive and legislative branches that was raised 34 years ago when Congress enacted the War Powers Act of 1973.

“Whatever our opinion of this war or its conduct,” Lieberman said during the floor debate, “it is in no one’s interest to stumble into a debilitating confrontation between our two great branches of government over war powers. The potential for a constitutional crisis here and now is real, with congressional interventions, presidential vetoes, and Supreme Court decisions. If there was ever a moment for nonpartisan cooperation to agree on a process that will respect both our personal opinions about this war and our nation’s interests over the long term, this is it.”

Lieberman’s view that Iraq may cause a fight over separation of powers not seen since Vietnam may be true. But his call for “nonpartisan cooperation” is another subterfuge for everyone to fall in lock step behind an administration whose actions now require maximum Congressional oversight. In acting as the “nonpartisan” cheerleader for new military escalation Lieberman said the Senate and House should not be “micro-managing” military interventions that are better left to the executive.

Lieberman’s effort to head off Congressional oversight notwithstanding, the 2002 joint resolution by Congress authorizing U.S. military action in Iraq has lost its relevance, having been predicated on “weapons of mass destruction” and intelligence proven to be false or “cooked” to suit the whims of the administration. This authorization to invade Iraq and described by the White House as “consistent” with the War Powers Act led to the beginning of hostilities in March 2003 and the continuing occupation by U.S. forces amid sectarian violence and civil war.

The War Powers Act (P.L. 93-148), enacted over a presidential veto by Richard M. Nixon in 1973, provides a statutory basis for the Democratic majorities in Congress to change course in Iraq. The nonbinding resolutions just considered in the Senate and House were the beginning, not the end of the debate. While Bush,Cheney and Lieberman will argue that presidential power trumps the law, lawmakers will be able to cite Section 3 of the War Powers Act which requires that the “President in every possible instance shall consult with Congress before introducing” U.S. Armed Forces into hostilities or imminent hostilities.

The “constitutional crisis” cited by Lieberman won’t stem from the “congressional interventions” that he fears, but by the recalcitrance and unilateral behavior of a White House resistant to change and indifferent to the will of the people.

The War Powers Act, crafted by Senator Frank Church of Idaho and other Vietnam era senators to curb unchecked presidential power over Vietnam, has been sustained through the years and its provisions need to be enforced to reverse the current Iraq policy. In a 2004 Congressional Research Service (CRS) analysis of the War Powers Act, Richard F.Grimmett, described the War Powers Act and its relevance to the Iraq situation:

According to the legislation, “the constitutional powers of the President as Commander-in-Chief to introduce forces into hostilities or imminent hostilities” was recognized on the condition of (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The executive branch has contended that the President has much broader authority to use forces, including for such purposes as to rescue American citizens abroad, rescue foreign nationals where such action facilitates the rescue of U.S. citizens, protect U.S. Embassies and legations, suppress civil insurrection, implement the terms of an armistice or cease-fire involving the United States, and carry out the terms of security commitments contained in treaties. The central element of P.L. 107-243 [Iraq authorization] is the authorization for the President to use the armed forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

More than four years after the Congress authorized military action against Iraq, “the continuing threat posed by Iraq” rings hollow.

Congress must now assert its role under the War Powers Act to change course and end a quagmire that has been one of the most costly in lives and public dollars in American history.