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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