Friday, January 25, 2008

The White House shreds the Constituation again

President Bush's plan to forge a long-term agreement with the Iraqi government that could commit the US military to defending Iraq's security would be the first time such a sweeping mutual defense compact has been enacted without congressional approval, according to legal specialists.
After World War II, for example - when the United States gave security commitments to Japan, South Korea, the Philippines, Australia, New Zealand, and NATO members - Presidents Truman and Eisenhower designated the agreements as treaties requiring Senate ratification. In 1985, when President Ronald Reagan guaranteed that the US military would defend the Marshall Islands and Micronesia if they were attacked, the compacts were put to a vote by both chambers of Congress.
By contrast, Bush and Iraqi Prime Minister Nouri Al-Maliki have already agreed that a coming compact will include the United States providing "security assurances and commitments" to Iraq to deter any foreign invasion or internal terrorism by "outlaw groups." But a top White House official has also said that Bush does not intend to submit the deal to Congress.

The above is from Charlie Savage's "Bush plan for Iraq would be a first: No OK from Congress seen; Constitutional issues raised" (Boston Globe). We'll come back to Savage in a moment but let's hop over to the New York Times where Thom Shanker and Steven Lee Myers' "U.S. Asking Iraq for Wide Rights on War" muddles through. From a stronger section of the article:

This emerging American negotiating position faces a potential buzz saw of opposition from Iraq, with its fragmented Parliament, weak central government and deep sensitivities about being seen as a dependent state, according to these officials.
At the same time, the administration faces opposition from Democrats at home, who warn that the agreements that the White House seeks would bind the next president by locking in Mr. Bush's policies and a long-term military presence.

That's about it for reality as they start doing their "one senior official" says and "one military officer" states and "Senior administration officials say" nonsense. You either go on the record or not. If you're rejecting interpretations of what's going on, you go on record or you don't get your lies in print. The paper is especially bad about allowing liars to hide in the shadows. Or as Savage notes, "The New York Times today reported that administration officials told a reporter that the final pact may not have security guarantees after all, but the article did not identify its sources." Savage also tells you that Barack Obama has become a co-sponsor of Hillary Clinton's legislation on this issue.

At the Los Angeles Times, Peter Spiegel and Julian E. Barnes' "U.S. defends proposed Iraq accord" do better than the New York Times but it's a brief article and huge in its disappointments:

Although the accord requires the Iraqi parliament's approval, the Bush administration has said it does not need to be approved by Congress, a position that has angered Democrats and made the talks with Baghdad highly controversial.
In a Jan. 15 Democratic presidential debate in Las Vegas, Sen. Hillary Rodham Clinton (D-N.Y.) said President Bush was trying to use the agreement to lock the United States into a long-term military presence in Iraq.
"I think we have to do everything we can to prevent President Bush from binding the hands of the next president," Clinton said. She has sponsored a Senate bill that would force the Bush administration to submit the agreement to Congress for approval.Bush recently said the accord would be similar to those with Kuwait and other nations.
State Department spokesman Tom Casey disputed Democratic contentions that the accord would obligate future presidents. He said it was not binding and was unlike treaties, which require ratification by the Senate.

Actually, Republicans are calling it out as well, among the Rep. Dana Rohrabacher. As for what Tom Casey did or didn't say, that's a curious reading of his laughable press briefing yesterday (see yesterday's snapshot). Casey was not prepared for the topic or for the press hitting so hard on the topic. He fumbled and gave several answers.

Some reports are noting Joe Biden's letter (such as Savage's), some aren't. So let's note it again in full:

December 19, 2007
The President
The White House
Washington, DC

Dear Mr. President:
I write regarding the Declaration of Principles signed by you and the Prime Minister Nouri al-Maliki on November 26, 2007, in which you committed the United States to negotiate a long-term security relationship with the Republic of Iraq.
The Declaration of Principles contains language suggesting that the agreement you intend to negotiate with Iraq may oblige U.S. Armed Forces to support Iraq in combating “Saddamists, and all other outlaw groups regardless of affiliation.” I am concerned about the implications of such a commitment, as it could mire us in an Iraqi civil war indefinitely, especially if a sectarian Iraqi government determines who qualifies as a “Saddamist” or “other outlaw group.”
Equally troubling is the suggestion by General Lute, your Assistant for Iraq and Afghanistan, that, in negotiating the agreement anticipated by the Declaration, your Administration does not expect to seek “formal inputs from Congress” or even engage in formal consultations with Congress. Yet, the Declaration anticipates that the agreement would include “security commitments” to Iraq in order to “deter foreign aggression against Iraq.” As a matter of Constitutional law, and based on over 200 years of practice, I believe that such an agreement would require Congressional authorization.
In 1969, the Senate adopted the National Commitments Resolution, which expressed the sense of the Senate that “a national commitment by the United States results only from affirmative action taken by the executive and legislative branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment.” The National Commitments Resolution defined a security commitment quite broadly, stating that, among other things, it includes any “promise to assist a foreign country, government, or people by the use of the Armed Forces . . . either immediately or upon the happening of certain events.”
While the Executive Branch has never accepted the definition of national commitments reflected in the National Commitments Resolution, there has been general agreement that security commitments require Congressional authorization. The disagreement has focused on what constitutes a “security commitment.” In a 1992 report submitted to Congress by President George H.W. Bush, the Executive Branch defined a security commitment as “an obligation, binding under international law, of the United States to act in the common defense in the event of an armed attack on that country.” The report provided a list of U.S. security commitments, all of which were either undertaken as advice and consent treaties, or as congressional-executive agreements, and thus were concluded with Congressional authorization.
I expect that your Administration is using the same Executive Branch definition of “security commitments” in the Declaration of Principles with Iraq as was used in the aforementioned 1992 report. Yet, General Lute’s comments suggest that the Administration will not seek Congressional authorization or even Congressional consultations in negotiating such a commitment. The Constitution and our past practice clearly require that the executive and legislative branches act together in order to provide a legitimate security commitment to another country.
At the core of this issue is, of course, the war power of Congress. A careful study of the Constitution and the intent of the framers as reflected, for example, in statements made at the Constitutional Convention, leave no doubt that, except for repelling sudden attacks on the United States, the Founding Fathers intended decisions to initiate either general or limited hostilities against foreign countries to be made by the Congress and not the Executive. The President is to direct and lead the Armed Forces and put them to any use specified by Congress.
Over the years Administrations that have taken a particularly expansive view of the presidential power to repel sudden attacks have encroached on this original understanding of the war power of Congress. This theory of executive power has frequently been justified on the basis of expediency and practical necessity in view of the nature of modern conflict. But no prior Administration has suggested that the Executive’s power in this area is unlimited or that it applies to ex ante agreements where there is ample time for Congress to participate. Moreover, in my view, the division of war powers specified in the Constitution is both compatible with modern warfare and essential to constitutional government.
A commitment that the United States will act to assist Iraq, potentially through the use of our Armed Forces in the event of an attack on Iraq, could effectively commit the nation to engage in hostilities. Such a commitment cannot be made by the Executive Branch on its own under our Constitution. Congress must participate in formulating, and ultimately authorizing, such a commitment. As stated in the report of the Committee on Foreign Relations that accompanied the National Commitments Resolution in 1969, “[t]he means of a democracy are its ends; when we set aside democratic procedures in making our foreign policy, we are undermining the purpose of that policy.”
I expect that the Committee will review this issue in hearings next year, and look forward to close consultation with your Administration. In advance of such hearings, I would welcome a clarification from you on the scope of the agreement you are considering, and the specific security assurances and commitments that it might entail. I would also appreciate a definitive statement from you affirming that Congress must authorize or approve any “security commitments” the United States negotiates with Iraq.
Joseph R. Biden, Jr.
[Senate Foreign Relations Committee]

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