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Bush's Lawful Power To Attack Iran

In a much lauded (not by me) piece, Larry Diamond passed a big piece of misinformation that was credulously accepted by too many:

Beyond this, the president and vice president subscribe to what some call the "unitary executive," which is a fancy way of saying they believe that Congress cannot prevent the president from doing almost anything he wants. . . . [Bush] could still attack Iran and have up to 90 days before being required to get congressional authorization for the attack.

The Unitary Executive theory propounded by the Bush Administration is a travesty, but it does not provide for what Diamond says it does. In relevant part, it means that once the CONGRESS authorizes military action, then the President's power as Commander in Chief is plenary. In any event, the Supreme Court has scuttled this idea with its decisions in Rasul, Hamdi and Hamdan.

Bruce Ackerman debunks Diamond's false claim:

BA: The president has to get another authorization for a war against Iran. It isn't up to Nancy Pelosi or the House to prevent him; he doesn't have the constitutional authority to just expand the war. He does not have the authority to unilaterally invade Iran....

FP: What about actions short of invasion: air strikes or hot pursuit?

BA: Air strikes would be an invasion. It's an act of war of an unambiguous variety....On a major incursion into another large Middle Eastern country, I believe that, when push comes to shove, the president will once again request the explicit authorization of Congress. When he was contemplating the invasion of Iraq, he was in a much stronger position politically -- and he was still obliged to request authorization.

Obviously I agree with my former Con Law professor. But he does miss the important wrinkle - that the 2002 Iraq AUMF could be Bush's rationale for striking Iran. That is why I say to stop a war with Iran, end the war in Iraq.

In discussing Senator Kennedy's troop cap proposal I described why the Iraq AUMF is a blank check for the President:

the Congress must strip the President of the power the Congress granted him to wage war in Iraq. To wit, the Congress needs to "undeclare" the Iraq Debacle by repealing the Iraq War resolution. A new resolution can be approved authorizing the use of force in Iraq for a purpose the Congress wishes, but I believe Senator Kennedy is wrong when he says:

In October 2002, Members of Congress authorized a war against the regime of Saddam Hussein, not to send our troops into a civil war. I voted against that resolution and feel an escalation of this war only compounds the original mistake of going in the first place.

Congress authorization was broader than this:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

This blanket grant of war power to the President was a disgrace. But it was done. And now it must be undone. More.

This is why I am quite peeved at many of my fellow Left bloggers and pundits:

Here is a new line of thinking I find extremely infuriating, via TPM:

Deciding what to do next about Iraq is hard — on the merits, and in the politics. It’s hard on the merits because whatever comes next, from “surge” to “get out now” and everything in between, will involve suffering, misery, and dishonor. . . . By comparison, Iran is easy: on the merits, in the politics. War with Iran would be a catastrophe that would make us look back fondly on the minor inconvenience of being bogged down in Iraq. While the Congress flounders about what, exactly, it can do about Iraq, it can do something useful, while it still matters, in making clear that it will authorize no money and provide no endorsement for military action against Iran.

Matt Yglesias ran with the same nonsense the other day:

[W]hat I'd urge everyone to do is keep their eyes on the real ball in the air at the moment: Iran. If Bush really bombs Iran and spineless Democrats back him ex post facto then the whole Iraq dynamic changes dramatically, and not for the better. If you want to hassle your member of congress on behalf of some peacenik cause this month, hassle him or her about Iran.

This is so wrong, so obtuse, so plain dumb from both Fallows and Yglesias, that I simply can't understand how they came to think these things. Let's be clear -- the chance of Congress authorizing military action against Iran is zero. Zilch. None. Bush will not even consider asking for it. Everyone must know this. How could they not? The ONLY reason Bush can even contemplate action against Iran is - surprise - BECAUSE WE ARE IN IRAQ! You want to stop military action against Iran? Then work like hell to get us out of Iraq. This is too obvious. How could these smart people not see this? . . . It is the ONLY way Bush can get at Iran. He has no authority to attack Iran. Hell, there is not even a plausible plan for attacking Iran's alleged nuclear facilities. We don't even have a clue where they are. As for the effect on the Iraq War, since when has the Bush Administration ever done anything that made sense in Iraq?

Do people not get it yet? It is not only that the Bush Administration is filled with shameless liars, it is that the Bush Adminstration is the worst in history. Their incompetence knows no bounds.

But my question is what are people like Fallows and Yglesias thinking? Don't push on Iraq because of Iran? Excuse me, one of the reasons to push hard on Iraq is to preclude an attack on Iran!

Bush does have a Congressional blank check on Iraq - the 2002 Iraq AUMF. He has no check at all on Iran. Any action taken against Iran MUST be justified by reference to the Iraq authority.

To argue that we must forget Iraq to concentrate on Iran is an argument so obtuse that is amazing that any intelligent person, and both Yglesias and Fallows are extremely intelligent, could possibly make it.

It is as plain as the nose on your face - to stop a war with Iran, we must end the war in Iraq.

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  • Display: Sort:
    The AUMF (5.00 / 1) (#3)
    by Andrew on Thu Feb 08, 2007 at 12:53:12 PM EST
    (a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

    (1) defend the national security of the United States against the continuing threat posed by Iraq; and
    (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

    We now know there was no threat to the security of the United States and there never was one.

    I think the UN did not sanction the invasion, and has not approved a US unilateral enforcing of UN Sec Cncl Resolutions.

    Thus it would be perfectly easy for the House to withdraw its consent, thus requiring the President as C-in-C to withdraw our Armed Forces.

    If there is insufficient stomach for that drastic action the House should at least, up-front, Before the Fact, specifically forbid the President from attacking Iran.  We have a goon who believes he is Guided, so he is not delaing from a full deck to start with.

    Sadly it is all unlikely, because we do not have an all-new 'clean hands' Congress, but a new Best Congress Money Can Buy, and The Buyers want to see Iran rocketed so that the Gulf oil and gas installations are hammered by Iran.  The Buyers have thousand year plans and the demolition of the US's economy is a mere bagatelle to them.

    AUMF (none / 0) (#1)
    by squeaky on Thu Feb 08, 2007 at 12:15:04 PM EST
    that the 2002 Iraq AUMF could be Bush's rationale for striking Iran. That is why I say to stop a war with Iran, end the war in Iraq.

    Thanks for being clear. I don't know why you did not say that in the first place, and I am not being snarky. Although I did kind of get that it was something along those lines.  

    Let's be clear -- the chance of Congress authorizing military action against Iran is zero. Zilch. None.
    Really? Maybe today, but if something happens like another 'pearl harbor' I do not think that will still be the case.

    Tonight on Hardball, Sen. Jim Webb (D-VA) said that during his time as Navy Secretary under President Reagan -- and "until very recently" -- the U.S. "never operated" aircraft carriers within the Gulf because it risked confrontation. "The chance of accidentally bumping into something that would start a diplomatic situation was pretty high," Webb explained. "With the tensions as high as they are, I'm very worried that we might accidentally set something off in there and we need, as a Congress, to get ahead of the ballgame here."
    think progress

    I guess what I am still a bit unclear about is whether or not you think that the WH tough talk about Iran is a red herring meant to distract efforts to end the Iraq war. Or is that an just irrelevant coincidence?

    Is what bothers you about TPM, Yglesias et al, is that you think that they are diluting efforts to stop the Iraq war by going on about Iran? Must be.  
    It has not swayed me from wanting to stop the Iraq war, I really wonder if it is swaying many others.

    I also think that the WH has to be considered radical at this point. Cheney has come out with some BS that the VP is a special branch of government and all. Whether or not they are radicals or not is not even the question. They are liars and not to be trusted and they want war with Iran.

    All in all I appreciate your trumpet calls. It has made me aware that some are insulting the Iraqi people the troops there, and some focused on ending the war, by saying things like
    It's Iran, not Iraq that Really Matters.
    That is counterproductive, no matter how scary WWIII may be.
     

    BTW (none / 0) (#2)
    by squeaky on Thu Feb 08, 2007 at 12:17:33 PM EST
    Nice catch, in correcting the Larry Diamond story. That error had long legs, for sure.

    Parent
    Somebody help me out here. (none / 0) (#4)
    by jimakaPPJ on Thu Feb 08, 2007 at 01:43:04 PM EST
    From the post:

    To wit, the Congress needs to "undeclare" the Iraq Debacle by repealing the Iraq War resolution. A new resolution can be approved authorizing the use of force in Iraq for a purpose the Congress wishes,

    Now, let's say what that actually says:

    Congress can tell the President what to do...

    I don't believe that.

    I think Congress can defund the war and thus have the troops returned home.

    But I don't think they can say what must be done. If you do that then you have around 600 CINCs, all wanting to get on TV....

    Read the Constitution (none / 0) (#8)
    by Repack Rider on Thu Feb 08, 2007 at 09:39:34 PM EST
    Congress can tell the President what to do...

    I don't believe that.

    The Constitution says that the authority to declare war rests ONLY WITH THE CONGRESS.

    Your apology for not knowing this is accepted in advance.

    Parent

    RePack (none / 0) (#12)
    by jimakaPPJ on Fri Feb 09, 2007 at 06:40:42 AM EST
    Why not try to take a comment in the context it was made in rather than be snarky??

    This was direcyly above my comment, and obviously what I was referring to.

    To wit, the Congress needs to "undeclare" the Iraq Debacle by repealing the Iraq War resolution. A new resolution can be approved authorizing the use of force in Iraq for a purpose the Congress wishes,

    In the first place, as I also noted, to "undeclare" the law in question with all that goes with doing that.

    Then a new law would have to be passed, with all that goes with that. Let's assume that happened.

    I don't think, for example, that the Congress could direct the President in "the use of force for a purpose the Congress wishes.." I don't think the Constitution allows them to micro manage.

    As to Declaring war, histoprically I believe that the President has asked Congress to declare.

    If they did so without his advance approval he could veto such a bill. Do you really think Congress could get the two thirds votes to overcome a veto?

    Parent

    Veto anyone?? (none / 0) (#5)
    by jimakaPPJ on Thu Feb 08, 2007 at 01:52:50 PM EST
    But to defund the war the Congress is going to have to pass a law.

    It will have to go through both Houses, survive a filibuster and then be vetoed, where it will be returned, and have to do the same thing again, only this time it will have to have a two thirds majority.

    Outside of some enjoyable mental masturbation, does anyone here think that has a snowball's chance in Mobtreal in Jauary? (Given global warming the verage temp will probably be 101 F.)

    Not a real option. (none / 0) (#6)
    by Gabriel Malor on Thu Feb 08, 2007 at 03:05:08 PM EST
    You are right to say that appropriations bills can be vetoed (unless the veto is overridden by a 2/3 vote), but that will defund the war (and the federal government) just as effectively as a more targeted appropriations bill. The money has to come through Congress in a signed bill before the Executive can spend it.

    Parent
    GM (none / 0) (#7)
    by jimakaPPJ on Thu Feb 08, 2007 at 04:12:44 PM EST
    Which is my point.

    If the Demos want to do that, they should. What they shouldn't do, as well as the RINOs that are coming out of the woodwork, is screw around with "nonbinding" resolutions.

    All that does is encourage the enemy by letting the Demos/RINOs hide behind the typical BS they pass out about supporting the troops, but not the war.

    I got news for'em. The troops and the war is one and the same as long as they are in Iraq.

    Parent

    He got news, folks (none / 0) (#11)
    by Ernesto Del Mundo on Fri Feb 09, 2007 at 05:39:27 AM EST
    I got news for'em. The troops and the war is one and the same as long as they are in Iraq.

    So if I want the troops to stop dying and getting maimed for life for what is basically a long list of lies, I am not supporting them? With that kind of logic, you should be in line for a Pentagon job.


    Parent

    Ernesto. (none / 0) (#13)
    by jimakaPPJ on Fri Feb 09, 2007 at 06:44:10 AM EST
    No Ernie, you are not supporting them. You are wishing them well.

    Worse, if in the process of "wishing" you demonstrate/protest, etc., you will lower their morale and improve the morale of the people they are fighting.

    Parent

    How unamerican (none / 0) (#14)
    by squeaky on Fri Feb 09, 2007 at 11:17:06 AM EST
    Why does the right want to stop debate on the war?

    In ppj's dream of a fascist america all who voice a position contrary to the government would be arrested for treason.

    No wonder Guiliani is one of his heros.

    Parent

    Squeaky (none / 0) (#15)
    by jimakaPPJ on Fri Feb 09, 2007 at 11:09:26 PM EST
    War is serious business.

    It is not something to be banded about by a bunch of people for political purposes.

    That you don't understand this only means that you don't undersatnd that. Why you do I do not know, and frankly don't care. It is enough that you demonstrate your beliefs.

    Parent

    And, it;'s 1,2,3,4, (none / 0) (#16)
    by squeaky on Sat Feb 10, 2007 at 12:01:20 AM EST
    What are we fightin' for?

    Freedom? Or fascism, ppj?

    Your position is horribly unAmerican. Stifle dissent? March in lockstep because we are in a scam war?

    Support the troops by bringing them home.

    Parent

    Squaky.... Fight??? (none / 0) (#19)
    by jimakaPPJ on Sat Feb 10, 2007 at 09:30:17 PM EST
    You aren't fighting for anything.

    What you are doing is letting someone else fight while you criticize.

    Parent

    Non-seqitur (none / 0) (#20)
    by squeaky on Sat Feb 10, 2007 at 09:44:34 PM EST
    Wha.?

    Support the troops bring them home.

    That is what we are fighting for.

    Parent

    Really? (none / 0) (#9)
    by LarryE on Fri Feb 09, 2007 at 03:52:24 AM EST
    he doesn't have the constitutional authority to just expand the war.

    Really? Why not? As it seems just everyone keeps pointing out, the 2002 resolution gave Shrub a "blank check" to "defend the national security of the United States against the continuing threat posed by Iraq." And if he declares that the source of that "continuing threat" lies in support coming from Iran, how do you say he has no authority to act, all you people insisting that Congress can't "micromanage" the war?

    He does not have the authority to unilaterally invade Iran

    Really? Why not? The War Powers Resolution says he can initiate military action in the event of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. (Emphasis of course added.) One bit of "proof" that some Iranian forces inside Iraq fired on US soldiers, one Gulf of Tonkin-type "incident" in the Persian Gulf, and bam! there's the authority.

    And 60 days later we'd be hearing how oh, we just can't cut off funds for our brave troops in the field!

    Will either of those happen? I don't know. But to deny they could happen is just foolish.

    A footnote (none / 0) (#10)
    by LarryE on Fri Feb 09, 2007 at 04:18:20 AM EST
    I meant to mention this:

    In signing the Iraq resolution in October 2002, Bush said his doing so

    does not constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests.

    If Bush declares Iran is, say, getting nukes and that's an act of "aggression" that is "a threat to US interests," what is your basis for saying he can't use force? Do you really think the lack of a specific authorization is going to stop him?

    Parent
    Bush faking Iran provocation... (none / 0) (#17)
    by Edger on Sat Feb 10, 2007 at 03:02:00 AM EST
    ...and virtually admitting it.
    ...the White House is wary that "the press will scrutinize the information intensely, that the intelligence 'dots' that the administration has assembled about Iran in Iraq can be connected multiple ways."
    ...
    Rozen explains that while the White House sees "damning" evidence of Iran's engagement with the Shi'a side of Iraq's hostilities, "the intelligence community is quietly indicating that the case purporting to prove Iran's involvement in Iraq is murkier and less decisive than the thrust of recent administration statements suggests."
    ...
    "The physical evidence we have -- weapons, ammunition, explosives -- have packaging material. When you look at it, it will be obvious ... that the stuff came from Iran," he tells her.

    However, Rozen adds, "But that evidence, the official conceded, doesn't tell exactly why it was sent, or who sent it." The administration is therefore likely to try to prove that the materiel is the same as what has been used by Iran-supplied Hezbollah in Lebanon.

    But it may not matter according to one former intelligence officer that Rozen quotes.

    "None of this hinges [on the Iran dossier]. We are not going to call this off if we can't prove that Iran is furnishing munitions to Iraqi groups," he says.

    "We are not going to call this off..."??? They are determined to launch against Iran, with or without  justification. The invasion of Iraq was just prelude. It has been war against Iran all along.

    Big Tent is right, IMO: "The ONLY reason Bush can even contemplate action against Iran is - surprise - BECAUSE WE ARE IN IRAQ! You want to stop military action against Iran? Then work like hell to get us out of Iraq. This is too obvious. How could these smart people not see this? . . . It is the ONLY way Bush can get at Iran."

    "If the United States continues to be bogged down in a protracted bloody involvement in Iraq, and I emphasize what I am about to say, the final destination on this downhill track is likely to be a head-on conflict with Iran and with much of the world of Islam at large,"
    ...
    He set out as a plausible scenario for military collision: Iraq fails to meet benchmarks set by the administration, followed by accusations Iran is responsible for the failure, then a terrorist act or some provocation blamed on Iran, and culminating in so-called defensive U.S. military action against Iran.

    That, Brzezinski said, would plunge the United States into a spreading quagmire eventually ranging across Iraq, Iran, Afghanistan and Pakistan.



    From Steve Clemons on Thursday (none / 0) (#18)
    by Edger on Sat Feb 10, 2007 at 06:23:23 AM EST
    February 08, 2007
    Iran Calls for "Grand Bargain" Dealmaking to Begin

    Iran's Ambassador to the United Nations Javad Zarif far outclasses Iranian President Mahmoud Ahmadinejad. Ambassador Zarif is a savvy, friendly, intellectually acute diplomat -- considered by other diplomats as "one of the best" in the business, according to one former US Ambassador I spoke to earlier today.

    Zarif has a powerfully logical op-ed in the New York Times today, "How Not to Inflame Iraq."

    This article takes a shot at the logic of occupation, and I largely agree with Zarif's view. However, I do believe that there are occupations that have gone right and that while I totally opposed the invasion and occupation of Iraq, there was nonetheless still a path to getting things more right than they have gone.

    But if Zarif reflects the approach of Iran's Supreme Leader, then there may be real opportunity for a convergence of some American and Iranian interests. But if Zarif, who is so obviously, framing policy in ways dissimilar from Iran's President is not indicative of the views of the state, then there seems little hope in avoiding a disastrous collision.

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