Can Congress Stop Bush's Attack On Iran? Experts Say " Yes "

    We all know that the only way that us citizen's of the United States are going to stop Bush and his future attack on Iran is through Congressional action. Everyone is asking if the Congress can do that.

   I've stated before, yes, it is possible and the pros will tell you so.

   The following has been shortened to just the main points. Click FindLaw  for the entire article                                                            

Leading Experts Say Congress Must Stop An Attack on Iran: Is That Constitutionally Possible?
Absolutely - According to Experts on Both Sides of the Aisle
Friday, Feb. 09, 2007  By JOHN W. DEAN
    Professor David Barron from the Harvard Law School opened the testimony. Barron is a graduate of Harvard Law School and clerked for Judge Reinhardt on the U.S. Court of Appeals for the Ninth Circuit, as well as for Associate Justice Stevens on the United States Supreme Court. He served as an attorney advisor in the Office of Legal Counsel at the Department of Justice, before joining the faculty at Harvard Law School in 1999.

"Congress possesses substantial constitutional authority to regulate ongoing military operations, and even to bring them to an end," Barron stated, explaining that while the power of the purse is the strongest authority to control executive military actions, it is not the only power. Barron's statement reviews relevant rulings of the Supreme Court, and finds in them, and in the Constitution, no real limits on Congress's powers to manage a war. In fact, his review of the sources related to this question shows that to find otherwise would be contrary to the clear intention of the nation's Founders to control the chief executive.

Professor Robert Turner graduated from the law school at the University of Virginia and is now a professor there. He co-founded the school's Center for National Security Law. He served as the National Security Advisor to Senator Robert Griffin (R-MI) in the mid 1970's and worked at the Pentagon, the White House, and the State Department during the Reagan Administration, and from 2001 to 2003 worked in the Bush White House Counsel's office.

Professor Turner's statement was based as much on "a practical appreciation of the imperatives of presidential military decision making in a time of crisis as from a deep study of the case law." While the committee was not seeking policy advice, Turner was offering it. He concluded that "Congress does indeed possess the power to limit the broad outlines of hostilities through legislation," but he explained, in effect, why in his view, Congress should not use that power, as a policy matter.

Dr. Louis Fisher is a Constitutional Law Specialist at the Library of Congress. Before joining the Library of Congress, he spent thirty-six years at the Congressional Research Service. Dr. Fisher has published a number of authoritative books relating to legislative versus executive branch conflicts. (And I have most of them on my book shelf.) Dr. Fisher's statement explained that not only does Congress have the power to influence the direction of the nation's military when at war, but its members have the responsibility to do so. Drawing on history, he sets forth what the Framers of the Constitution did, and why they did it. His statement is rich in historical quotations that are not the now-hackneyed comments commonly found in discussion of these issues.

  For example, in 1793, Fisher reported, Madison called war "the true nurse of executive aggrandizement. . . . In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace."

  And in 1861, Fisher advised the committee, Attorney General Edward Bates explained that the President is Commander in Chief not because he is "skilled in the art of war and qualified to marshal a host in the field of battle." Rather he is Commander in Chief so whoever leads U.S. armies to battle "is subject to the orders of the civil magistrate, and he and his army are always 'subordinate to the civil power.'"

  Bradford Berenson, now a partner at Sidley & Austin, graduated from the Harvard Law School and clerked for Judge Silberman on the U.S. Court of Appeals for the D.C. Circuit and Associate Justice Kennedy on the United States Supreme Court. He also served as Associate Counsel to President George W. Bush from 2001 to 2003, a position in which he focused on the relationship between the Congress and the Executive.

Berenson took an approach similar to Professor Turner's. Accepting that the Constitution and rulings make it very clear that Congress has ample power and authority relating to this nation's military activities, he instead made a policy case as to why Congress should not exercise their power. He acknowledged the nature of his statement when summarizing it for the committee, and quickly conceded, "I think the constitutional scheme does give Congress broad authority to terminate a war."

Finally, Professor Walter Dellinger of the Duke University School of Law testified. Dellinger, the former head of the Office of Legal Counsel at the Justice Department under President Clinton, and also acting Solicitor General from 1996 to 1997 (during which time he argued nine cases before the High Court) is a graduate of Yale Law School and a former law clerk for Associate Justice Hugo Black

"In the absence of any congressional legislation on point," Dellinger said in his prepared statement, "I would be ready to conclude that a president can act on his own authority and pursuant to his own judgment in matters of national security. Once Congress has acted, however, the issue is fundamentally different. The question then becomes whether the Act of Congress is itself unconstitutional."

In short, all the experts on this politically diverse but balanced panel agreed - in the abstract - that the Congress has the power to control a warrior president. But, as Walter Dellinger noted, the action itself must be constitutional.

Senator Kennedy thus, during the questioning, properly moved the discussion from the abstract to the specific.

Can Congress Prevent the President from Going to War In Iran?

In condensed form, with a few annotations, here is the text of the exchanges that occurred. They require no commentary:

SEN. KENNEDY: "Question just quickly through the panel. Is the President required to seek authorization from Congress before using the military force against Iran?"

DR. FISHER: "I think if there's some action that's a threat to U.S. soldiers I think a president has the power to repel sudden attacks, protect U.S. troops. Otherwise, if it goes beyond isolated incidents like that I think you're running into the preface of the Iraq Resolution, which …Congress amended … to make sure it applied only to Iraq. So I think by statute, by legislative policy, you can confine the President to Iraq." (Emphasis added.)

SEN. KENNEDY: "I'm interested in … what actions can Congress take now to ensure the President doesn't take us into war in Iran without congressional authorization."

PROF. BARRON: "The question of whether the President could right now initiate any actions against the Iran -- I think the proper way to think about it is what authority does he have under the current Iraq Authorization Statute, which would require some close consideration. . . . William Rehnquist [as an assistant attorney general] … thought that a statutory limitation on the exercise of such authority would be constitutionally valid. So I think the legal question then comes to . . . no doubt Congress could restrict him from going and widening the war, not just in terms of the amount of troops used, but in the geographic area covered, and the only issue is whether Congress has in effect already done so by virtue of the limitations and bounds of the Authorization to Use Military Force in Iraq that's already enacted." (Emphasis added.)

SEN. KENNEDY: "Yes, Professor Turner."

PROF. TURNER: "Senator, let me just make nuanced point on this. John Hart Ely in his War and Responsibility made the point that after Congress declared war against Germany, FDR did not need a new declaration of war to go into North Africa after the German forces. Going into Cambodia I think was perfectly legal because the North Vietnamese had taken over the whole side of Cambodia. . . . I could see a situation in which Iran became involved in the Iraq War where the President would be able to use force. . . . I think in terms of launching a major war against Iran he should get and would need an official [Congressional approval] for Iran. But there's some area in there where I think he could act." (Emphasis added.)

SEN. KENNEDY: "If Congress passed legislation requiring the President to seek authorization from Congress before using military force against Iran would the President be obliged to seek such authorization before launching military action?"

MR. BERENSON: "Senator Kennedy, I think the questions that you're posing falls into the sphere . . . of shared powers, and it's important to recognize that for very important institutional reasons the President is the first mover and the prime mover in this area of shared powers. That has to do with the fact that unlike Congress which needs to go through an often time consuming and difficult legislative process, a process that can sometimes be stymied, the President has the ability to receive information in real time to act to protect the national security. So the President through the [clause vesting him with executive power], through his executive authority in the absence of legislation to the contrary by the Congress, I think unquestionably would have authority to engage Iran in hostilities, whether in defense of our forces inside the borders of Iraq or if he decided that we needed to do something to address Iran's nuclear facilities. I do not think he would be acting outside the scope of his constitutional authority. That said, for major military actions most presidents have recognized the importance of coming to Congress as a political and practical matter. It is certainly unwise, if not unconstitutional, to try to engage in large scale hostilities or engage a new enemy in warfare without public support. And the best way to ensure that at the outset is, of course, to come to Congress." (Emphasis added.)

SEN. KENNEDY: "My time, Mr. Chairman, is up. Mr. Dellinger -"

PROF. DELLINGER: "Briefly, I agree with Mr. Berenson's statement. I believe that the President does have the authority to introduce U.S. troops into situations of hostilities, including in Iran, in the absence of congressional limitation as long as the anticipated scope and duration does not amount to a war. I don't believe he has the authority to send 500,000 troops into Iran, but he does have the authority to deploy U.S. forces in hostilities…. That said, it is also clear that Congress can impose limits either before or after the fact on the size, scope, and duration of that. But I do believe there's a consensus in the Executive Branch position that the President has the authority to deploy U.S. forces into hostilities when Congress has not spoken to the question." (Emphasis added.)

* * *

In sum, as I read both the general statements of these experts, and their specific answers to Senator Kennedy's question about Iran, everyone agrees that Congress has the power to prevent a president from going to war.

The only question that is doubtful, then, is whether the members of Congress actually have the will to do so. This, I suspect, is what James Fallows concluded, when he said that, at best, they might draw a line.

Of course, George W. Bush and Richard B. Cheney know this too, so they will do whatever they wish to do - and Congress may or may not catch up. But there is no real question as to whether Congress could legally stop Bush and Cheney from going to war in Iran without coming to Congress to fully explain what they are doing and why. Congress has that power; the only question is whether it will dare to use it.

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