All through the House debate on President Bush?s troop “surge” into Iraq, opponents of the nonbinding resolution against it dared the proponents to put up or shut up. If they are really out to stop the war, they clamored, they should just cut off the funds for it, through Congress?s power of the purse.
One of the most taunting ridicules came from John Yoo, the former deputy assistant attorney general who was the most vocal salesman of expanded executive power in the first Bush term. Yoo co-authored an article in The New York Times titled “Why are the Pacifists So Passive?” pointing out actions Congress could take under the Constitution to put the brakes on the war.
“Not only could Congress cut off money,” the article said, “it could require scheduled troop withdrawals, shrink or eliminate units, or freeze weapons supplies. It could even repeal or amend the authorization to use force it passed in 2002.”
But now that the Democrats are in control of Congress, Yoo and co-author Lunn Chu, a New York lawyer, wrote, they have backed away from taking real measures, and “are suddenly acknowledging that the commander in chief and executive branch may be better off without their micromanagement, after all.”
That mocking observation, however, was a bit premature. Leading congressional critics of the war are already contemplating such “micromanagement” to deal with the administration?s expected $100 billion supplemental appropriations request for the war.
Democratic Rep. John Murtha, chairman of the House Appropriations Defense Subcommittee, has said any approval of the new money will be tied to limitations on repeated deployments of troops to Iraq. Speaker Nancy Pelosi has added that new requirements for urban warfare training and armor protection will also be laid down.
Sen. Joseph Biden, chairman of the Senate Foreign Relations Committee, says he will seek repeal of Congress?s 2002 resolution authorizing the use of force in Iraq, replacing it with one tied to a plan for withdrawing U.S. forces there.
All these proposals fall short of the demand of liberal Democrats that Congress simply cut off the money as it did in 1973 to halt the American role in the Vietnam War. But they dodge the allegation that denying all funds for the war would amount to deserting U.S. troops in the field.
Yoo?s interjection on the Bush troop “surge” is consistent with his position as a leading architect of the view that the president as designated commander in chief in the Constitution has virtually unlimited power in wartime.
Well before the invasion of Iraq, Yoo as a Justice Department witness told a Senate committee that despite the constitutional power of Congress to “declare war,” Bush could act on his own, without congressional approval, if he so chose. He eventually did go to Capitol Hill in the fall of 2002 and got the use-of-force resolution.
Thereafter, Yoo as a law professor at the University of California, Berkeley, continued to preach the litany of expanded executive power in wartime, defending warrantless searches and methods of intelligence-gathering widely criticized by others as violations of the Geneva Conventions on torture and detention.
The Democratic plans to put limits on new war appropriations indicate clearly that the “pacifists” chided as “passive” by Yoo and Chu have no intention of settling for non-binding resolutions to prod President Bush in the weeks ahead.
That determination could signal another round of legal squabbling over the president?s wartime powers as commander-in-chief and the degree to which Congress can “micromanage” the war through the withholding of, or limitations on, the use of the money it appropriates.
In a recent hearing called by Democratic Sen. Russ Feingold, a strong voice for winding down and ending the war, constitutional scholars reaffirmed the power of the legislative branch to tie purse strings to the executive?s war-making conduct.
Those who in last week?s debate on the non-binding resolution against the surge described it as meaningless were wrong. It was indeed a “first step” toward ending the U.S. involvement in Iraq that has a growing sense of inevitability about it.
Jules Witcover, a Baltimore Examiner columnist, is syndicated by Tribune Media Services. He has covered national affairs from Washington for more than 50 years and is the author of 11 books, and co-author of five others, on American politics and history.
