Like most lawyers who spend a career in litigation, I found myself many times in the chambers of a Superior Court judge negotiating with opposing counsel in 11th hour efforts to avoid trial. It's a big part of the job. They tell us that 90% of all cases end this way, and that if they didn't the whole system would be quickly overwhelmed. Over and over again you play your part in this Kabuki theatre. Your main bargaining chip is simple; if the other side doesn't compromise to your satisfaction, you tell everyone (with as much conviction as you can muster) that you'll let a jury decide.
Nancy Pelosi seems to favor a different approach. She begins her "negotiations" by giving away all of her leverage in the naive hope President Bush will like her for her accommodating nature and will "cooperate." Although (to resume the analogy) she is negotiating with people who are willing to bribe the jury, blackmail the judge and blow up the court house, she says, for example, that impeachment is "off the table." When Bush wants to escalate the war in Iraq, Nancy says, in that fine measured diction that must sound swell up on Russian Hill, "we are not going to withdraw funding, because we must support the troops," although in so doing she gives away Congress's main Constitutional weapon for controlling the conduct of war. She will lead a noble charge instead to pass a non-binding, symbolic resolution expressing her distaste for the "surge."
Joe Biden, in similar feckless fashion, tells us that there's nothing anyone can do to stop the Commander-in-Chief from doing anything he wants in this stupid war. I think he knows better. But who are these people? What's wrong with them? What overwhelming majority of the American people would have to express their utter contempt and hatred of this debacle before the Democrats would "risk" doing something effective?
How about this for an argument? Bush went to war on the basis of a resolution passed by the House and Senate, apparently under the War Powers Act, which was itself probably an unconstitutional abridgment of Congress's right to declare war under Article I. Congress is apparently afraid to declare war, which it has not done since December, 1941, so it passes resolutions saying to the President, "you decide." Nevertheless, the War Powers Act does act to constrain the President in his conduct of war, and the resolution for Iraq reads as follows.
SEC. 1. SHORT TITLE.
This joint resolution may be cited as the "Authorization for the Use of Military Force Against Iraq".
SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS
The Congress of the United States supports the efforts by the President to--
(a) strictly enforce through the United Nations Security Council all relevant Security Council resolutions applicable to Iraq and encourages him in those efforts; and
(b) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION. The President is authorized 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.
So that's it. That's Bush's authority to conduct this insane war. Suppose, for the sake of precision, we say that Iraq may be chronologically considered as Saddam's Iraq (Iraq1) and the present, post-Saddam fiasco (Iraq2). It seems very clear that Sec. 3 of the Authorization was aimed only at Iraq1. The current, "sovereign" Iraq which we installed is not a "continuing threat" to the USA; indeed, they're now our friends and allies in the Middle East, which was the whole idea behind their installation. A "bastion of democracy" in the "heart of the Arab world." And this Iraq (Iraq2) can't be held responsible for any breach of UN Resolutions, such as those pertaining to weapons of mass destruction or incursions into Kuwait. Indeed, what all the Shiites presently in power have in common is their status as victims of Iraq1.
It is true that Iraq2 is having a hard time running the country in an orderly way, on account of the civil war that has gained force in the power vacuum created by Saddam's removal and American bungling. But that does not in itself constitute any authority to continue the war, which is now devoted to "nation building." Bush said the mission was "accomplished" way back in May, 2003. Under the Resolution, his only authority for commanding troops in Iraq at all, he was right. As the War Powers Act of 1973 itself states,
- SEC. 2. (c)
- The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (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.
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