7-23-07, 10:11 am
The question of how the Constitution defines Congress' power to tell the president how to deploy military forces is often raised in current debates about how and when to end the war in Iraq.
Usually, members of Congress, the administration, and pundits who support Bush's 'stay-the-course' policy use the question to attack antiwar opponents for undermining the president's constitutional power as commander-in-chief and for threatening the security of the country. Several Republican Senators repeated this mantra in the recent debate over troop withdrawal from Iraq.
But what are the bases of the argument? Noah Feldman and Samuel Issacharoff are constitutional scholars who are critical of Bush's handling of the war but who have argued, in an article published last March in Slate, that indeed Congress has no authority to force the redeployment of troops. (Feldman's already budding career received a boost when, as a 32-year old, Bush appointed him to aid in writing Iraq's new constitution in 2003. His experience in Iraq makes his criticisms of Bush's handling of the occupation especially pointed.)
As I am no Constitutional scholar, I gladly defer to Feldman and Issacharoff on Constitutional matters. But they make a rather significant admission in the opening of the article: 'The Constitution gives Congress the power to declare wars, fund them, and oversee the way they are fought. Yet the Constitution never says exactly how these powers are to be reconciled with the president's authority as commander in chief' (emphasis added).
Further, because no court decisions have specified or delineated the powers afforded to Congress and the president on these matters, Feldman and Issacharoff confess, historical precedent must be the guide. For this reason, Feldman and Issacharoff say they will rely on historical examples to judge whether or not Congress has such authority. But then Feldman and Issacharoff admit that '[h]istorical practice cannot always be translated into practical guidance.'
No matter. Without any specific Constitutional basis and having undercut their own appeal to history, Feldman and Issacharoff proceed by insisting that no historical example can be produced to show that Congress ever claimed the right to force the president to make decisions on troop redeployment, thereby limiting the authority of the current Congress (and presumably all US Congresses for all time).
They wind up producing an argument based on opinion and selective historical data rather than legal facts that simply repeats rather than proves the premise with which they launch their article: 'war must be conducted under the president's direction, not run by committee.'
For these reasons, one needn't be a legal scholar to refute Feldman's and Issacharoff's positions. Indeed, Feldman and Issacharoff seem to admit that the evidence for their conclusion lie outside the purview of their particular expertise.
Iraq is Like the US Civil War?
In addition to historical examples dating to the 1790s and the early 1800s, Issacharoff repeated one particular example in an interview with New York Times in March to prove that Congress has refused the authority to order troop redeployment: the Civil War. Issacharoff noted that Congress wanted to influence many of President Abraham Lincoln's military decisions but refrained from doing so on the issue of troop deployments.
“[Congressional interference] bordered on harassment,' the Times quoted Issacharoff as saying, 'and Lincoln resisted some of the excesses, but even then, Congress never tried to issue orders about the deployment of troops.”
Armed with such historical data, Feldman and Issacharoff insist Congress by declining to expand its military authority to include troop deployments, it thus set a precedent for what the current Congress should or should not do.
But Issacharoff's example is problematic at best. Yes the Civil War was a war, but is it comparable to the invasion and occupation of Iraq?
Not quite. The Civil War was a domestic conflict started by a group of rebels who sought to destroy the United States in order to preserve the abominable institution of racial slavery from which they derived huge amounts of wealth. It was not a war based on lies. It was not an invasion of another country; it was the suppression of an internal rebellion.
Further, Congress did not seek to end the war until unconditional victory. The public, though it had become weary, continued to support the war and its cause, returning congressional Republicans to power throughout. Specific aspects of Lincoln's management of the war were openly criticized, but doubts about the necessity of preserving the country by defeating the rebels never gained serious momentum.
Additionally, Lincoln's party controlled Congress and lacked significant opposition on the strategic aims of the war. And, as the Times article points out, congressional maneuvers had more to do with forcing a more engaged and active military prosecution of the war.
Congressional Republicans' refusal to do more than 'harass' Lincoln was motivated more by partisan support for their president, patriotic sentiments about preserving the country, and ideological opposition to the goals of the rebellion (including slavery) than an intention to define congressional war powers.
In the case of the Iraq war, the opposite is true. The debate over troop redeployment out of Iraq is not just about this or that tactic in support of the overall strategic goal. The debate is about the need to end the war and the occupation, a goal supported by the vast majority of the public. Public opposition to the war resulted in the loss of the pro-war party's control of Congress last November, and most observers interpret the election as a public mandate for Congress to end the war. Also, in contrast with the Civil War, the continuing existence of our country is not seriously linked to the continued occupation of Iraq, except by the war's most extreme supporters.
So Feldman's and Issacharoff's comparison is something of a stretch. But if Feldman's and Issacharoff's version of the Civil War must be accepted as an example of congressional timidity, why did they use only selective examples of congressional action from that era?
Notably, Congress took an aggressive role in Reconstruction. Begun during the war itself, Reconstruction policy involved the deployment of military forces to occupy and govern the South even after the official cessation of hostilities and the assassination of Lincoln. Congressionally mandated military force was needed to maintain federal authority, suppress violence carried out by terrorist organizations like the KKK, and to protect the lives, rights, and property of African Americans.
In fact, Congress impeached and nearly forced Lincoln's successor, Andrew Johnson, out of office in order to stop him from using his position as commander-in-chief to withdraw military forces and obstruct Congress' Reconstruction agenda. (See, for example, Eric Foner's Reconstruction.)
Twentieth-century examples are also readily available. In her speech following the first congressional vote to withdraw troops from Iraq last March, House Speaker Nancy Pelosi recalled that Republicans who controlled Congress in the late 1990s had attempted to pass withdrawal resolutions aimed at forcing President Clinton to bring the troops home from the conflict in the former Yugoslavian states – some of the very same people who now deny congressional authority to do so against Bush's war.
Congress also tried to pressure President Truman to redeploy troops out of Korea when it became clear that the conflict had been fought to a stalemate. Public and congressional opposition to the war had grown so strong, that Dwight Eisenhower won election in 1952 in no small part based on his promise to go to Korea to find a political resolution. Truman's defiance of Congress was an attempt to hold out for victory, but clearly the delay in implementing a political solution cost thousands of lives needlessly.
The Russian Invasion
But successful Republican efforts in Congress to force the partial end of the US occupation of Russia after World War I is also a useful, if mostly forgotten, example of the legislative branch's claim to the authority to force the president to redeploy troops. Here's what happened.
In the late summer of 1918, President Woodrow Wilson ordered several thousand US troops to Russia ostensibly to prevent Allied ammunition stores sent there prior to the Bolshevik revolution from falling into the hands of the Soviets.
Before the overthrow of the Tsarist autocracy in early 1917, the Allies had relied on the Tsar to maintain the second front in the east to split Germany's powerful military forces. But mismanagement of the war leading to the unnecessary deaths of millions of Russian troops and drastic conditions on the home front in what many Russians considered to be an unnecessary and unjust war fueled the revolt against the Tsar.
The regime that replaced the autocratic Tsar accepted bribes in the form of tens of millions of dollars in new loan guarantees by Western banks and governments to keep the war going. The war dragged on, and tons of Allied materiel was shipped to Russia to keep the eastern front open.
Antiwar sentiments in the Russian population did not disappear. Many more deaths, economic collapse, and famine fueled a second revolution headed by the Communists in late 1917. Lenin, the Bolsheviks, and the Soviets took power with the promise of land, peace, and bread.
Representatives of the new Soviet government sought talks with the Allied governments, including the Wilson administration, over the return of the supplies, continuing trade relationships, and working out loan repayments. Their overtures were ignored.
Instead, Wilson ordered US forces to join an Allied invasion of the Soviet Union with tens of thousands of troops from Britain, France, and eventually from the newly formed Czechoslovakia. The US troops were placed under British command and sent to Archangel in northwestern Russia and Vladivostok in the far east. And they were promptly forgotten.
Although Wilson told Congress and the public that the invasion was intended only to guard Allied property, the soldiers at Archangel remained in the USSR for nearly a year and fought in many battles against Soviet troops. In fact, they were ordered to join military operations all over northern Russia as part of the ongoing civil war. They assisted anti-Soviet military forces intent on overthrowing Soviet authority long after the Armistice with Germany was signed. Hundreds of US troops died, were wounded, or were evacuated due to illnesses.
Just days before the Armistice, Wilson's Democratic Party lost control of Congress (in no small part due to his failure to keep his promise to stay out of the war). Immediately, Republican Representatives-elect and Senators-elect began to demand the withdrawal of US troops from Europe, despite the fact that a treaty had not been signed and the war had not officially ended.
In this chorus of demands for troop withdrawal, Sen. Hiram Johnson (R-CA), a staunch anti-Wilsonian and America-firster launched a campaign in Congress to force the end of the occupation of Russia. Johnson introduced a resolution in December 1918 demanding an accounting of the Russian occupation from the Wilson administration's as well as a statement of its goals and rationale. Johnson accompanied the resolution with a fiery speech on the Senate floor that January demanding the withdrawal of US troops from Russia.
He saw his resolution as a first step in a campaign within the Senate to convince lawmakers to use congressional power to force the withdrawal of US troops from Russia.
Johnson also joined with a movement of hundreds of military families of troops stationed in Russia to expose the harsh conditions the troops faced, to rail against the use of troops against a sovereign government with whom Congress had not officially declared war, and for the lack of a clear mission.
Military families revealed that their loved ones lacked adequate equipment to keep them safe in the harsh Russian winter. They were not getting enough food, clothing, and shelter. News about loved ones stuck in Russia was sparse as shipments from northern Russia were limited by the sub-freezing temperatures. Many were dying both in battles and from the elements. On the Senate floor, Johnson even condemned the atrocities US troops were ordered to commit against civilians and civilian authorities.
That February, Johnson delivered to the Senate over 100,000 signatures on petitions gathered by the military families calling for an end to the occupation of Russia. Johnson accused Wilson of hypocrisy for claiming to support democracy and the right of self-determination of all nations, while ordering the invasion of Russia and stubbornly refusing to bring the troops home.
Meanwhile the Wilson administration continued to insist that conditions were good for the troops and that their mission was merely to guard ammunition stores. Wilson's secretary of war said, more or less, that they went to Russia with what they had and that the troops were just going to have to tough it out. Mostly, though, the Wilson administration just didn't want the facts about the Russian occupation to go public.
When Johnson's anti-occupation resolution reached the floor for debate, Senators did not ruminate over whether Congress had the authority to force the president to withdraw troops, or that such an action undermined Wilson's commander-in-chief authority.
The Senators focused almost entirely on the perceived Bolshevik threat, specifically on the imagined looming Communist takeover of the US as suggested by labor unrest and growing public criticism of Wilson's policies, which had been outlawed as sedition, espionage, and/or treason during the war.
In one form or another, Senators who supported Wilson's invasion of Russia argued that the troops were needed there to prevent the Bolsheviks from destroying our way of life over here. Some Senators called for expanding the forces in Russia. Others who opposed the occupation fell silent out of fear of being perceived as pro-Communist.
After heated and mostly irrational debate (including ravings about immigrant hordes, Soviet and German cash, and Manhattan Jews), the vote on the resolution was a tie. Wilson's vice president, of course, broke the tie.
But Congress continued to press the issue, and to avoid further erosion of congressional support for other policies, Wilson backed down. He set the date of June 1919 to start a phased withdrawal of US troops from Russia.
Troop withdrawal orders were sent to northern Russia by April 1919, and by the time the frozen harbors thawed sufficiently in June, two-hirds of the troops stationed at Archangel were redeployed to France, arriving in the US by July. More than 2,000 remained, however, and, unfortunately, the several thousand troops in the far east stayed and fought Soviet forces for another year with only more deaths and wounds to show for the effort. (For only the latest account of the congressional reaction to the Russian occupation, see Ann Hagedorn's, Savage Peace.)
Authority by Default
Contrary to Feldman's and Issacharoff's claim, history does provide examples of how Congress actively sought to force the president to order troop redeployment, punished presidents for failing to take specific military actions, redefined the strategic aims of a conflict, or sought control over specific military maneuvers.
One part of Feldman's and Issacharoff's conclusion is worth additional comment. While ordering partial troop redeployments lies outside of congressional authority, they do argue that Congress does have authority to order the complete withdrawal of military forces and thus end a military action. To this interesting twist, however, they add the nonsensical condition that such a step should be based only on the president's judgment of the necessity of continuing or ending a particular military adventure or occupation, no matter how 'incompetent' or 'disastrous' his or her leadership, orders, or actions might be, effectively rendering Congress' authority to end a war inoperative.
Their admitted inability to cite actual Constitutional language or court interpretations combined with their careful avoidance of contrary historical examples sinks the Feldman and Issacharoff thesis.
But the growing demand by 7 in 10 Americans to redeploy most of the troops out of Iraq by April 2008 and the belief of more than 6 in 10 Americans that war funding should be tied to a timetable for withdrawal puts the nail in its coffin.
In a democratic society, allowing war (or any serious policy question) to be determined solely by historical precedent, elite scholars, or the president makes as much sense as allowing hysteria and untruths to hold sway. And because President Bush refuses to accept the overwhelming call to end the war, it is the responsibility of Congress to act swiftly.
--Joel Wendland can be reached at
