Proustian Wars

Julian Sanchez | February 16, 2006

The Bush administration's claim that its pet warrantless wiretap program was implicitly authorized by Congress when it passed the Authorization for the Use of Military Force against al Qaeda was already absurd on its face: The Foreign Intelligence Surveillance Act (which Congress modified after the AUMF to give intelligence agencies more leeway) already has provisions detailing the limited additional powers the president gets in the event of a military conflict. Claiming that the AUMF created an exception to FISA is like arguing that we have to discard the Emergency Procedure because, dammit, it's an emergency! But George Will points out another, more pragmatic problem with this line of argument in his Washington Post column today. If Congress is led to believe that presidents may claim sweeping powers in the wake of any such authorization, in the future any Congressional green light on the use of military force, Will suggests, may fill as much shelf space as Remembrances of Things Past. Administration supporters are now playing an unseemly sort of political chicken with the legislator, saying, in effect: "Well, if you didn't mean to authorize it, defund the program now that it's underway—we dare you."

Will's suggestion that future authorizations of force "might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede" may be a bit fanciful, but there is a real danger here that future legislatures will be wary of granting a necessary inch, knowing that the president will feel at liberty to take a mile—and be well positioned politically to get away with it. That's not the kind of dynamic people properly concerned with our ability to respond nimbly to terrorists should be eager to set up.

Comments

|2.16.06 @ 1:47PM|#

An interesting thought, but it doesn't come to much in real terms, unfortunately.

Whether congress authorizes force in the future or not will always and only ever depend on how bloodthirsty they perceive the populace to be, and nothing more.

Tim Cavanaugh|2.16.06 @ 1:54PM|#

Will's suggestion that future authorizations of force "might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede" may be a bit fanciful, but there is a real danger here that future legislatures will be wary of granting a necessary inch, knowing that the president will feel at liberty to take a mile?and be well positioned politically to get away with it.

There is a 100-percent chance that the next time any president asks any congress for a use-of-force authorization, he or she will get it. The only stipulations they add to any authorizations will be positive ones-specifying what laws the authorization supersedes without mentioning any that it doesn't, and possibly specifying projects that will benefit the home districts of individual legislators. The days of congress acting as a check on presidential war powers are over.

|2.16.06 @ 1:55PM|#

Tying the hands of the Executive in this War on Terror would put the public at risk. Sometimes you need to shoot first and answer questions later.

|2.16.06 @ 1:57PM|#

The days of congress acting as a check on presidential war powers are over.

Tim, I fear that you are right. gaius, is there room in your escape chariot?

|2.16.06 @ 2:08PM|#

Dang, you guys beat me to it.

I mean honestly, do you think these people even read what they pass in the first place?

R C Dean|2.16.06 @ 2:20PM|#

The days of congress acting as a check on presidential war powers are over.

Only because Congress lacks the political will to use the tools the Founders gave them - especially, the power of the purse.

If they want the eavesdropping program stopped, they take should take affirmative, Congressional/legislative action to stop it.

Its not that Congress can't act as a check on the President's war powers. Its that they don't especially want to. Better to strut and bloviate than actually do something you might be held responsible for later.

|2.16.06 @ 2:30PM|#

"The days of congress acting as a check on presidential war powers are over."

Are you assuming non-divided government for eternity? Or that the populace will always be terrorist-crazy? I cannot see how anyone could possibly buy either assumptions.

That a Democratic Congress would not act as a check on a Republican President, or the reverse, is ludicrous, but not as ludicrous as single party rule forever.

The power of the Presidency has ebbed and flowed a great many years, and seems likely to do so in the future. This particular lapdog Congress is an embarassment, but even if it remains in Republican hands, it is likely to starting asserting itself a little a GWB becomes increasingly lame duck.

|2.16.06 @ 2:58PM|#

Coach,

Funny how even the Dems in Congress aren't exactly making a stand. Isolated ones like Feingold, sure, but I think the vote was 96-3 against his attempts to amend PATRIOT. So I'm not so sure that even if we add a few more donkeys to that auspicious chamber that it's going be much more than the rubber stamp it is now.

And I don't remember the divided government stopping Clinton's many uses of the military.

|2.16.06 @ 3:00PM|#

Why is nobody asking why George Will hates America?

|2.16.06 @ 3:47PM|#

quasibill,
I am hoping that was a joke.

The Democrats, as a minority party do not get to set the agenda. They get to vote on Republican proposals. A few more donkeys, as you put it, could flip the leadership.

It is true that Clinton was able to use the military in the Balkans, but it is not true that Congress did not act as a check on those powers. And if you think the '98 House would have signed off on a bill for warrantless searches with no oversight, I really have to question your interpretation of those times.

Let me give you a possible scenario in the future - Dems take over house and Senate and Jeb Bush is President in 2009. He proposes invading and occupying Iran, just like we did Iraq, although he says this time, his VP insists, we will be greeted as liberators. His Secretary of State provides a presentation showing aerial photos of where we "know" their weapons of mass destruction are at the UN.
Is it really plausible that a Democratic Congress would then offer him a blank check?

I mean, I think they are cowardly, but simple electoral politics would have them vote against something like that.

Tim Cavanaugh|2.16.06 @ 3:58PM|#

And I don't remember the divided government stopping Clinton's many uses of the military.

IIRC, congress did not authorize force in Kosovo, so I'm revising my 100-percent estimate down to 99 percent. Given what actually happened in the case of Kosovo, I'll add that there's a 100-percent chance that presidents will continue to go to war when and where they want to, with the only bar to that being, as it is now, feasibility.

|2.16.06 @ 4:11PM|#

"...with the only bar to that being, as it is now, feasibility." - Tim

Unfortunately, that bar was not up during GWB's Iraq misadventure.

|2.16.06 @ 4:18PM|#

Impeach Bush now!

Er,um, of course this means that Cheney becomes president...

|2.16.06 @ 4:21PM|#

So from now on we'll have a Very Brady Congress? "Exact words, Greg!"

|2.16.06 @ 4:29PM|#

The AUMF didn't specifically limit the president's authority to have sex with a chicken while balancing on one foot atop the Washington Monument. Next time, Congress better cover its ass and include a line about that.

|2.16.06 @ 4:56PM|#

as such, PM, the president is welcome to get fucked atop the washington monument.

|2.16.06 @ 7:02PM|#

Julian Sanchez,

Actually, I don't have any problem with it. Congress is the more important war-regulating power of the two branches (as both the text of the Constitution and the general understanding of the 1780s about which branch regulated war illustrate) and it has abdicated this respondibility far too much in the 20th century

|2.17.06 @ 5:19PM|#

Hakluyt, you've hit the nail on the head. Yeah, presidents like to run amok while wearing their Commander-in-Chief hats, but it's Congress that has refused time and again to assert its clear authority to limit presidential action. First, the power to declare war wasn't an "ink blot" and still applies to modern war (why wouldn't it???), and second, Congress controls the purse.

I wonder what it is about the presidency that makes presidents so gung ho about war. I wrote an article some time ago looking at whether a president could veto a declaration of war. Of course, the topic had barely been touched before, because no one could imagine Congress being for a war while the president was against it.