Hurrah For Feingold

As Glenn Greenwald points out today, Sen. Russ Feingold (D-WI) is one of the true statesmen in the Senate, if by statesman we mean someone whose rhetoric changes not one whit with the occupant of the White House.

The topic? Republican (and Feingold's) rhetoric on Somalia in 1993. After Black Hawk Down, Republicans insisted that President Clinton withdraw American troops from Somalia, troops that Bush the Elder committed in a UN sanctioned effort. Clinton: "I refused to do it and stayed six months and had an orderly transfer to the United Nations."

Feingold is a minority member of that chorus, because his tune has not changed: he still thinks Congress has the power to force the Commander In Chief to withdraw. As Greenwald details (he lists quote-after-quote), key Republicans -- from McCain to Specter -- who today say Congress does not have this power certainly asserted that it did in 1993. Greenwald concludes, "The Constitution hasn't changed since 1993, so I wonder what has prompted such a fundamental shift in Republican views on the proper role of Congressional war powers."

Captain's Quarters concedes that "some sort of AUMF [authorization for the use of military force] did indeed get issued" for Somalia. However, he believes Congressional action in 1993 "demonstrates more that Congress can use the power of the purse to end a military deployment rather than to withdraw an AUMF."

If Congress has the legal authority to make such a move, it still remains an open question whether such action would be wise politically. It puts responsibility on Congress, mostly the Democrats, if a precipitate withdrawal leads to a collapse in Iraq, systematic genocides, and the rise of a terrorist state that would require another American invasion to destroy.

Testifying before Feingold's committee, Harvard Law Professor David J. Barron said:

Congress possesses substantial constitutional authority to regulate ongoing military operations, and even to bring them to an end...

The constitutional text reflects... a concern about the absence of adequate legislative checks on executive action in wartime. And while there is no direct support for the view that the Congress is powerless to limit the conduct of war by statute, there is abundant evidence revealing the Framers' concerns about such unchecked presidential authority. The founding generation obviously did not intend to recreate a chief executive who would in effect be beyond control, especially in military affairs....

Even during the Civil War, President Lincoln, who can hardly be said to have had a modest view of his powers as Commander in Chief, did not assert a right to act in contravention of the statutory limitations on his conduct of the war that he confronted...

A conclusion that the Commander in Chief enjoys an illimitable power to escalate or augment a military campaign that was authorized years earlier, and presumably thus to retain the power in connection with it to use, as he sees fit, any of the million persons that may be enlisted in the armed forces at a given time, is simply not consistent with the principles that animated the delineation of war powers set forth in the Constitution's text. The Framers were too concerned about unchecked executive power, especially in times of war, to countenance such a notion.

I am not a lawyer. In this area, I have to trust in those who have studied the law, recognizing that little in the law seems black-and-white. In addition to Barron, Balkinization sides with Greenwald (Joint Letter - pdf), and SOTU recites the relevant quotes from Sen. McCain (R-AZ). From Balkinzation:

Congress may limit the scope of the present Iraq war by ...directly defin[ing] limits on the scope of that war, such as by imposing geographic restrictions or a ceiling on the number of troops assigned to that conflict ...[or] by enacting appropriations restrictions that limit the use of appropriated funds. Indeed, the reason that the Constitution explicitly limits appropriations for the Army to two years is in order to ensure that Congress oversees ongoing military engagements.

Does Congress have this authority, and should the body exercise it?

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