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Not Funding Iraq and Discharge Petitions

by: Armando

Mon Oct 01, 2007 at 11:26:29 PDT
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Reading the comments in Buhdy's diary at the Big Orange Satan's place, this is what passes for rebuttal:

Discharge petition
Get all the Republicans and 18 Democrats to sign on, and it comes up for a vote. Not hard to do. And people would hold the other 210 Democrats personally responsible for 18 Bush Dogs doing it, too.
An interesting theory. Now, it so happens that those of us who argue for the not funding option are aware of the discharge petition, and the more likely avenue, a motion to recommit. We are aware that the Republicans, joined by enough Democrats, can force funding without timelines. It is why we have argued that we need 218 to embrace the not funding without timelines option. And despite saying "it would be easy" to get majority support for a motion to recommit or a discharge petition, saying it does not make it so. But let's assume it is easy, the benefit of forcing the Republicans do that is it will prove to all of us that the Democrats in Congress have done everything they can to end the war. There is truly nothing more we can ask of Speaker Pelosi. And we do not ask for more than that. But she will not do it. So she has not done everything she can.
You want to make it a Republican war? Make the Republicans pass THEIR bill funding it. Let the Dems who want it to be their war go on the record and vote for it. Why anyone would be opposed to this strategy is beyond me.

Armando :: Not Funding Iraq and Discharge Petitions

Apparently there are a few:

Congress will vote to pass it (4+ / 0-)
Recommended by:brittain33, beachmom, magi, Justanothernyer
All of the Republicans will vote for it (they have a unified party). The red-state Democrats will vote for it (we don't have a unified party). Voila... it passes. Where do you get the idea that Pelosi or Reid can force Congresspeople to vote the way they want them to vote? You can yell as lous as you want. It won't make the red-state dems less conservative.
You vote independent... I'll stick with the party that brought us social security, civil rights, and environmental protection.
by dianem on Mon Oct 01, 2007 at 10:18:53 AM PDT
Buhdy responds correctly:

And THEN whose war is it? (0 / 0)
THEN there is no doubt.
What do we lose by having that happen?
We get to see who wants the war and who doesn't. The Blue dogs get to own their vote for siding with the Republicans.
What do we lose?
This rejoinder is simply not dealing in reality:

There is no doubt now
It's Bush's war. He owns it, and the Republican party are accomplices in maintaining it. But once the Democrats make a stand, and some of them vote to support the war (and that is how it will be played in the media), then it becomes a two-party war. Heck, right here on dKos there are a lot of people who are claiming that the Democrats inability to stop the war amounts to implicit support of the war. How hard do you think it will be for the right-wing media to make the same case?
Right there on dkos of all places? Imagine that. the progresive base sees through the bullshit and cries foul? Imagine that. Frankly, that is the reason to push the issue. And what the hell, you may even win. How bad would that be?
Silly people who think they are "shrewd" strategists. Rahmbo Jrs.

Tags: Iraq, Congress, Capitulation, Defunding, (All Tags)

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Not Funding Iraq and Discharge Petitions | 51 comments

The only thing that can make things worse (4.00 / 9)

is doing what she is doing right now.

by: Militarytracy @ Mon Oct 01, 2007 at 13:30:56 PM CDT

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Policywise AND (4.00 / 10)

politically.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 13:32:50 PM CDT

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Let me add something stunningly obvious (4.00 / 11)

After accusing Dems of cutting and running, it is not bloody likely they will then try and run on "it's their war" too!

The problem Dems face is with THEIR BASE, the people actually paying attention.

It is not with Republicans running ads.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 13:42:21 PM CDT

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And of course (4.00 / 8)

Ms. Pelosi gets that part at least. That's why her eyes were large and practically on fire when Blitzer repeated his questioning regarding her 'angry base'.

'And I'm neither left or right, I'm just staying home tonight, getting lost in that hopeless little screen.' Leonard Cohen - Democracy

by: Stranger in a strange land @ Mon Oct 01, 2007 at 13:45:20 PM CDT

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I guess Babs isn't the only one (4.00 / 5)

who chooses to protect her beautiful mind ;)

by: Militarytracy @ Mon Oct 01, 2007 at 14:00:34 PM CDT

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That's not the way I see it: (4.00 / 6)

It's Bush's war. He owns it, and the Republican party are accomplices in maintaining it. But once the Democrats make a stand, and some of them vote to support the war (and that is how it will be played in the media), then it becomes a two-party war.

I see this as a two-party debacle until Dems come clean. I will vote accordingly.

by: Compound F @ Mon Oct 01, 2007 at 13:42:45 PM CDT

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And you are right not to see it (4.00 / 2)

that way.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 13:47:40 PM CDT

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?????????? (4.00 / 6)

Congress will vote to pass it (4+ / 0-)
Recommended by:brittain33, beachmom, magi, Justanothernyer
All of the Republicans will vote for it (they have a unified party).[...] It won't make the red-state dems less conservative.
You vote independent... I'll stick with the party that brought us social security, civil rights, and environmental protection.

?????????????????
sure, they got us these rights....but where are they now they are threatened??? huh??

i guess if i really want an answer i have to go ask her in orange...

but you are right.....make everyone go on record as to where they stand on funding the occupation. now!!!

then we'll see whose war/occupation it really is. (i swear it isnt mine) and any dems left who want to vote for it can start calling it what it is...'their' occupation. complete with up-armored mine-resistant vehicles. ive heard theyre better than peace... ;)

"You don't have a soul.
You are a soul.
You have a body." ~C.S. Lewis

by: 73rd virgin @ Mon Oct 01, 2007 at 13:43:40 PM CDT

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Let's go there for a second. (4.00 / 3)

I'll stick with the party that brought us social security, civil rights, and environmental protection.

So what has the alleged heir of these bedrock social programs done to protect them? When was the last time you heard any Democrat talk about doing anything to stabilize Social Security? And they're doing a bang-up job on civil rights, ain't they. Government-issued ID to vote, anyone? Same sex marriage? Warrantless wiretapping? Military commissions? Bobby Kennedy would be appalled. And don't get me started about the EPA. It's a joke, staffed by apologists for the worst polluters in the country. Superfund passed its sunset with nary a wimper, and less than 20% of the worst toxic dump sites "cleaned up" - and that's only the ones we KNOW about.

This is clearly NOT the party that gave us "social security, civil rights, and environmental protection." If this Congress was in session in 1967, they'd be fretting about the lack of Republican support for the Voting Rights Act.

But let's stop living in the past. On THE major issue of OUR day, we're get lip service and not much else from "our" Democratic majority. Forgive me if I'm not lining up for more of the same.

Forget about "keeping the base happy." How about "doing the right thing?"

by: Turbonerd @ Mon Oct 01, 2007 at 20:55:45 PM CDT

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thank you (0.00 / 0)

you expressed that waaaay better than i did.

"You don't have a soul.
You are a soul.
You have a body." ~C.S. Lewis

by: 73rd virgin @ Mon Oct 01, 2007 at 21:03:38 PM CDT

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There should be a draft..... (4.00 / 1)

Then the Iraq War will be stopped altogether.

I think-- the Democrats are not feeling the pressure from the people but instead from moneyed interest, Fox and Media and Bush Dogs.

There should be a draft -- for people to really rise up.

by: timber @ Mon Oct 01, 2007 at 13:45:52 PM CDT

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No (4.00 / 2)

Too pat an answer, and there absolutely SHOULD NOT BE A DRAFT.

Imagine your son or daughter being sent off to fight this war of aggression. Imagine your son or daughter disagreeing with this mess and still being forced to go out and fight.

Imagine what Bush and Cheney could do with hundreds of thousands of more troops at their disposal.

I know what you're saying, draft = uprising in the streets to end the war. But between the draft and said uprising, there will be much bloodshed.

Not a solution, IMO.

'And I'm neither left or right, I'm just staying home tonight, getting lost in that hopeless little screen.' Leonard Cohen - Democracy

by: Stranger in a strange land @ Mon Oct 01, 2007 at 13:53:02 PM CDT

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disagree there should be a draft (0.00 / 0)

and it should go in order of economics....

The first bunch for combat infantry should come from the wealthiest 1% and then the 2% and so on.

The war would be over before they started spinning the big bingo drum...

by: skippythebox @ Mon Oct 01, 2007 at 16:56:48 PM CDT

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I'm not much of a two wrongs person (0.00 / 0)

I shudder to think what could happen to the Iraq War or how long this debate could be stretched out with a little fresh meat for the grinder. The military is bust right now, it's running on fumes and after Vietnam this new all volunteer military was supposed to prevent the next crazy political debating till hell freezes over war and it will. We just don't have the manpower to go on much longer after this spring. We will likely be flat busted the day Bush leaves office and have to leave Iraq no matter what and I'd rather leave it that way. Americans aren't really joining the military now either. All the recruitment goals have been adjusted way down this past year and a half to make things look better than it really is. The USA should have to deal with its busted military and the weakness that comes with that. People should be unwilling to allow or support their children to enlist until our legislators prove they can be trusted with our childrens lives and our lives again and not squander them for cheap trinkets on a political whim.

by: Militarytracy @ Mon Oct 01, 2007 at 14:40:31 PM CDT

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Civil uprising (0.00 / 0)

at this point could be quelled by the private army. It also didn't seem to faze the wussie Democrats during Viet Nam.

by: Shaharazade @ Mon Oct 01, 2007 at 14:58:16 PM CDT

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If anybody wonders how the Repubs always win framing (4.00 / 14)

this is it in a nutshell.

The Dems worry about what the Repubs say. The Repubs say whatever the fuck they want, even if it is not true. They say it with conviction and stick to it even when it is discredited.

No one calls them 'blatant liars,' they win.

You CANNOT win playing your opponents game.

Reality is the result of war between two rival groups of programmers,

so....Roar Louder!!!

by: buhdydharma @ Mon Oct 01, 2007 at 13:47:11 PM CDT

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Ding! Ding! Ding! (4.00 / 4)

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 13:49:04 PM CDT

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You and I have been dealing (4.00 / 3)

with that very argument for months. there is nothing new under the sun.

by: andgarden @ Mon Oct 01, 2007 at 13:51:39 PM CDT

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Nope (4.00 / 4)

There is a little of the other argument, that Bush will steal the money from somewhere else but I think most folks realize that is absurd.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 13:56:24 PM CDT

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heh (4.00 / 2)

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:06:25 PM CDT

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Except for you of course (4.00 / 2)

Heh.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:12:19 PM CDT

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impeach! (4.00 / 7)

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:14:57 PM CDT

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I know it's too late (4.00 / 4)

but that word will always get a pony from me.

'And I'm neither left or right, I'm just staying home tonight, getting lost in that hopeless little screen.' Leonard Cohen - Democracy

by: Stranger in a strange land @ Mon Oct 01, 2007 at 14:17:02 PM CDT

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and that assumes (4.00 / 1)

lockstep support, among repugs. how many repugs have already strayed?

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:05:32 PM CDT

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2 (4.00 / 3)

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:11:32 PM CDT

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and if we actually make it a fight (4.00 / 2)

i'm guessing there will be many more. this is not a battle the republicans want to wage.

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:14:26 PM CDT

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To hear (4.00 / 4)

the "geniuses" in that thread, it is the Dems who should dread a debate on funding the war.

And I imagine, in an example of stunning cognitive dissonance, they probably championed the idea of a "magical September" where after a summer of "ratcheting up the pressure," the GOP was going to cave.

The star of that silliness in my circle at Talk Left was Talex.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:20:18 PM CDT

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heh (4.00 / 1)

talex flamed out on dk. any hint of criticism directed towards the dems is "dem bashing." he's registered, here, so you might have another shot at him!

as for magical september- i do think some of the repugs WOULD cave, if there was, you know, some actual pressure... ratcheted...

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:24:22 PM CDT

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No (4.00 / 2)

Talex talks to the hand with me.

He deserves no respect and does not get any from me.

I do not respond to him at all.

Others can choose differently of course.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:34:34 PM CDT

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Unfortunately, others do. (4.00 / 1)

"We can't change the country. Let us change the subject." Stephen Dedalus in Ulysses, by James Joyce(1922).

by: oculus @ Tue Oct 02, 2007 at 00:35:45 AM CDT

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The Chickenhawks vs. the Chickenshits ;) (4.00 / 1)

both irrational as hell.

by: Militarytracy @ Mon Oct 01, 2007 at 14:42:24 PM CDT

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The devil wears orange? (4.00 / 1)

"The second teaching from the golden eternity is that there never was a first teaching from the golden eternity. So be sure." Jack Kerouac

by: robodd @ Mon Oct 01, 2007 at 14:06:29 PM CDT

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Heh (0.00 / 0)

I keeed of course.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:12:44 PM CDT

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I was tempted (4.00 / 2)

To jump in and demand that Buhdy delete the diary since I already tried last night.

But I don't think folks there would have got the joke.

You know, more people than not understand the issues and how the Speaker is DoubleSpeaking her way around the issue.

It's encouraging.

'And I'm neither left or right, I'm just staying home tonight, getting lost in that hopeless little screen.' Leonard Cohen - Democracy

by: Stranger in a strange land @ Mon Oct 01, 2007 at 14:07:59 PM CDT

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leadership (4.00 / 4)

is off the table.

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:10:11 PM CDT

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i invited him (4.00 / 1)

to come fight it out, with you...

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:09:24 PM CDT

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Who? (4.00 / 1)

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:11:10 PM CDT

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brittain (4.00 / 1)

who made the comment you quoted...

the glory, the love, the madness.

by: Turkana @ Mon Oct 01, 2007 at 14:12:51 PM CDT

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Ah (4.00 / 1)

What is there to debate?

Honestly, they need to come up with an actual REASON why having that happen will be worse than Pelosi getting hammered by the base?

The comment I quoted in extended is so laughably obtuse as to make one wonder if they know anything about politics.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:16:09 PM CDT

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One thing I do not miss from daily kos (4.00 / 3)

is the idiots who think they are geniuses:

Ah, but you're preaching to a crowd here (0 / 0)
that doesn't like the facts of a messy democracy getting in the way of their passionate demands that end it now?
I'm curious, what do people here believe is the minimum timeline to get all troops out of Iraq? Think we're going to back up big busses on Tuesday and motor them all out by Thursday?
I kinda like Howard Dean, it's those wild eye crazies that came with him I wonder about!
by redlief on Mon Oct 01, 2007 at 11:47:40 AM PDT/blockquote>
Hey "genius," how long does it take you think to START getting out? Suppose it takes 2 years. IF we start next April, we'll be out that much sooner.
Man, daily kos is populated by some of the stupidest people on Earth.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:09:58 PM CDT

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Oops (0.00 / 0)

Screwed upmy blockquote.

The last two lines are my inimitable insulting style.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:10:45 PM CDT

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I don't mind the opinion (4.00 / 2)

so much as the insufferable superiority running through that whole comment.

Opinions can be changed, pompous superiority complexes last ferever.

'And I'm neither left or right, I'm just staying home tonight, getting lost in that hopeless little screen.' Leonard Cohen - Democracy

by: Stranger in a strange land @ Mon Oct 01, 2007 at 14:15:47 PM CDT

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I do not mind the superiority (4.00 / 4)

hell, how could I?

It is the STUPIDITY running through the opinion that bothers me.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:16:55 PM CDT

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lol (4.00 / 2)

'And I'm neither left or right, I'm just staying home tonight, getting lost in that hopeless little screen.' Leonard Cohen - Democracy

by: Stranger in a strange land @ Mon Oct 01, 2007 at 14:17:59 PM CDT

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And here it comes (4.00 / 1)

the old Feed and Forage Act bullshit:

Feed and Forage Act (0 / 0)
http://en.wikipedia....
Sorry to say, but that's the deal. Bush has the ability to get money to continue the occupation.
So, do we want Dem representatives to end up removing any power they may have had by essentially opting out of any control of the occupation.
by otto on Mon Oct 01, 2007 at 12:00:21 PM PDT

I have debunked that bullshit 20 times already but it never dies.

Stupidest people on Earth.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:33:08 PM CDT

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Since the genius mentioned him (4.00 / 1)

Where the hell is Howard Dean on this? I posted this in another thread but The Democratic Party's homepage barely mentions the war!

And if you click on our supposed agenda there - again, it's not mentioned!!

It reminds me of that Fawlty Towers episode - Don't mention THE WAR!

(This really is funny as hell if you have a minute - I hadn't watched it in ages:)

"In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

by: snud @ Mon Oct 01, 2007 at 14:55:24 PM CDT

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A friend of mine reported to me (4.00 / 1)

That Dean sucks on this. He is of the "we don't have the votes" school.

Nothing public to that effect but I trust my friend implicitly.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 14:59:21 PM CDT

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Looks to me like your friend's right. (4.00 / 1)

Are we on another planet? WTF? Makes me wanna put tin-foil on my head and look for sinister reasons as to why this is getting ignored because I just don't get it.

"In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

by: snud @ Mon Oct 01, 2007 at 15:02:47 PM CDT

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On the Feed and Forage Act (4.00 / 1)

Link:

The latest tall tale on Iraq is from Dem apologists -- that even if Congress elected to not fund the Iraq Debacle, President Bush could unilaterally fund the Debacle through invocation of the Feed and Forage Act of 1861 (41 USC, Section 11.) This is the misconception of folks who simply do not understand how the Constitution and the law works. Let's consider the language of the Food and Forage Act:

(a) No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the Department of Defense . . . for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year.

Consider the implications of the interpretation being forwarded by some that this grants the President unlimited power to fund the war unilaterally. It would make the law plainly unconstitutional as it would violate the the express separation of powers, the statements of the Federalist Papers, uncontroverted by any and all writings by scholars, conservative or liberal. In short, it is an argument that is only made to excuse the inaction of the Democratic Congress. NO Republican I know of has made this argument. Only enabling Democrats. Very telling.

But let's pretend this is a serious argument, not merely excusemaking. The plain language of the statute says that the power is only for "for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies." It does not provide any power for combat expenditures. Moreover, it is clearly designed as an emergency measure, in place of Congress having the time to act and is designed to be covered by future appropriations of Congress. It is, in sum, a stopgap measure.

It does of course, make clear that the troops can not be "abandoned" in the field - the President can always provide for their food, clothing, health, etc by invocation of the Food and Forage Act. But he will not have to. Congress will always provide for that and has. But the idea is the President can fund combat operations by recourse to the Food and Forage Act and that is plainly and unequivocally false.

But don't take my word for it. Read this:

On January 17, 2007, Robert Sunshine, the assistant director of CBO, testified before Congress that "The authority of the Feed and Forage Act is limited to obligations for items meant to sustain troops in the field, such as subsistence, clothing, fuel, quarters, transportation, and medical supplies. It cannot be used to purchase additional weapons or to support military hardware." His testimony states that items meant to sustain soldiers during an ongoing military engagement could be purchased with this authority. These items include but are not limited to those outlined in the original law (ie clothing, fuel, etc.). Sunshine states this authority does not extend to items such as additional weapons or military hardware because they are not related to maintaining soldiers in combat zones.

. . . The Feed and Forage Act is referenced in an 1868 Supreme Court case that found that the Secretary of War had lacked the authority to agree to financial arrangements that promised future payment. Despite this verdict, Louis Fisher of the Congressional Research Service cites a description of the purpose of the act within the dissenting opinion in this case: "It will thus be seen that the contracts for the subsistence and clothing of the army and navy, by the secretaries, are not tied up by necessity of an appropriations or law authorizing it. The reason of this is obvious. The army and navy must be fed, and clothed, and cared for at all times and places, especially when in distant service."
Taken together, these two interpretations of the law (as well as a literal reading of the original language) would point to the military having authority to provide for the humanitarian needs of soldiers during an ongoing conflict when appropriations are lacking, but not the authority to procure goods and services directly related to continuing soldiers war-fighting capabilities.

Now that that is clear, let's consider another argument that is often bandied about - that the President can shift appropriated monies to pay for the Iraq War. This is also balderdash and demonstrates a complete ignorance of the Constitution and Congressional appropriations. It is often said that Bush did just that when he shifted when General Tommy Franks shifted resources from the Afghanistan theater to preparation for the Iraq invasion. I have never seen an argument that sustains the claim, one citing the appropriation violated, etc. But let us assume it is true for the sake of argument. Subsequently, the Congress adopted the policies of the President on the matter and chose not to object to any alleged misuse of the appropriation. Indeed. it is not like Bush coulod not have gotten whatever he wanted from the Rubberstamp Republican Congress. The example is extremely unconvincing.

Let's do a review of some basic Constitutional law and the separation of powers shall we?

[T]he relevant enumerated Article 1 powers:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.

After listing these powers, the law professors summarily conclude that

The provisions plainly set forth an extensive role for Congress that goes far beyond the initial decision of declaring war and subsequent decisions regarding its funding. This mass of war powers confers on Congress an ongoing regulatory authority with respect to the war.
. . .
The law professors then miscite the Steel Seizure Cases to support their argument that "the President is bound by statutory restrictions in wartime." Of course the President is bound by constitutional statutory restrictions. But the law professors wrongly imply that the Steel Seizure Cases support their argument that the Congress can impose statutory restrictions on the SPECIFIC conduct of military operations, as opposed to general rules governing the military. The Steel Seizure Cases simply do not stand for that proposition. Nor do Rasul, Hamdi and Hamdan, also cited by the law professors. Instead, Justice Jackson's concurrence, which the law professors fully endorse, expressly limited its holding to DOMESTIC restrictions:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.

Justice Jackson's differentiation between domestic and external restrictions on the Commander in Chief power is consistent with the arguments we raised regarding President Bush's violation of FISA, and it is completely in line with the understanding of the Federalist Papers.

For example, in Federalist 74, Hamilton wrote:

THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' . . . Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

In Federalist 69, Hamilton described the division of the war power thusly:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

And the Federalist Papers also speak to the REAL questions, the ones the law professors avoided in their mad rush to defend the idea of Congressional micromanagement of the Iraq war, to wit, can Congress end the war, and if so, how? The Federalist papers provide the answer. In Federalist 24, Hamilton wrote:

that standing armies [need not] be kept up in time of peace; [n]or [is] it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. . . . [T]he whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; . . . there [is], in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

Here Hamilton states clearly that the power to end wars resides in the Congress most clearly through the power of the purse and the EXPRESS requirement that no appropriations for a standing Army last for more than two years. In this way, any war would require a de facto reauthorization from the Congress every two years by its decision to fund the war.

In Federalist 26, Hamilton wrote:

Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. . . . The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. . . . The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. . . .

What is clear is that all this legal tapdancing gets us nowhere. To end the war, the Congress can do one of two things, or preferably both: it can repeal the Iraq AUMF, and/or it can refuse to fund the war. This sophistry from Democrats, politicians and legal scholars, does neither us nor our principles credit.

"as usual, . . . analytical and calm"

by: Armando @ Mon Oct 01, 2007 at 15:33:23 PM CDT

by: you @ soon

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Should be a draft (4.00 / 1)

When the Romans fought Carthage, the Romans used a draft; the Carthaginians used mercenaries.

Rome won, burned the city after looting it, butchered all the inhabitants except some good-looking women taken back to Rome as slaves. Then the Romans spread salt on the soil so nothing would grow back.

After more than a couple millenia, it doesn't look like Carthage is making a comeback with its elephants and all.

Not good to use mercenaries to fight wars. Hannibal could tell you if he and his Republican elephants had survived the Democrats from Rome.

Best, Terry

by: terryhallinan @ Mon Oct 01, 2007 at 15:39:28 PM CDT

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A good start (4.00 / 1)

would be to stop funding Blackwater. NOW. Let Republicans try to explain why these highly paid assassins, without military oversight or any other kind, are necessary "to support our troops," other than prolonging this war and killing Iraqi civilians.

Of course defunding Blackwater would likely result in the immediate need for a draft. And this might make Americans pay attention to exactly how broken our military is--since Bush can't continue his adventure in "global dominance" (as the neo-cons coyly phrase it) without a mercenary force.

It will be interesting to see how professional defeatists Pelosi and Reid would rationalize their failure to defund Blackwater.

by: miriam @ Mon Oct 01, 2007 at 16:46:57 PM CDT

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Not Funding Iraq and Discharge Petitions | 51 comments