A Government of People, After All

By David Michael Green

18/07/08 "ICH" - -- So, did you hear about the latest bipartisan commission report?

Bet you can’t guess who’s on the thing! James Baker? Check. Warren Christopher? Check. Lee Hamilton? Check. Ed Meese? Check. Brent Scowcroft? Check.

(What, no Henry Kissinger? Guess he was busy fighting war crime extraditions.)

These guys should just go get a room and get it over with, already, eh? Anytime anyone in government needs some mind-numbingly anodyne cover story for the latest word in power consolidation, they bring in this crew – The Center-Right Dinosaur Club. Six words out of Warren Christopher’s mouth alone is guaranteed to render comatose any formerly sentient being. The guy is a human anesthesia.

They did Iraq. They buried 9/11, leaving the Bush administration not only completely unscathed, but completely off the record as well. Explain to me again, wouldya, why the president would only testify with Dickie holding his hand, and not under oath?

In the wake of the imperial establishment’s utter humbling in Mesopotamia, the latest commission project concerns the sticky old question of national war powers: Who’s got ‘em, who doesn’t, and how to deal with that in a supposed to democracy. (Hint: The short version is this: The president does whatever he wants to, and all you other people should go sit in the corner and just shut up.)

This is nothing new. The Founders grappled with it in the same fashion they did most everything else. Their goal was to create a government with just enough power to govern effectively, and no more. So they split powers up as often as they could, and this case is no exception. Congress got the power to declare war and the president got to be commander-in-chief of the military. Not bad, except nobody bothers to declare war anymore. That concept sorta went out with the horse and buggy.

After the lengthy but undeclared war in Vietnam, Congress realized it was holding the short end of a very long stick, and attempted to reel in the imperial presidency’s war-making powers with the War Powers Resolution of 1973. Nixon vetoed the thing, and Congress then mustered a rare and difficult veto override to make it into the law of the land. Well, kinda. You see, the problem is that every president since that time, Democratic or Republican, has rejected as unconstitutional its central provisions requiring the president to withdraw deployed forces within 60 days (90 days maximum), unless authorization for their continued presence has been obtained from Congress.
How can we ever know who is right – those presidents or Congress? To find out, it would require the rather unique situation of a president continuing to pursue a war in defiance of Congressional opposition. Sound familiar? Oh yeah, I guess I forgot one other necessary factor. In such a situation you’d also have to have a Congress with the stones to do something about such an imperious president and his unpopular war. They’d have to at least have the courage to bring a challenge in the federal courts, whereupon the constitutionality of the War Powers Act would then finally be resolved, one way or another. Call me crazy, but somehow I don’t see this as being on Nancy Pelosi’s or Harry Reid’s agenda.

So, now, along comes this Baker-Christopher Commission to recommend legislative changes, supposedly to avoid another Iraq fiasco. They propose to repeal the War Powers Act (which they describe as unconstitutional) and replace it with “The War Powers Consultation Act of 2009", which would require the president to “consult” with Congress prior to deploying troops into a “significant armed conflict” (generally, combat operations likely to last more than a week), and would create a new Joint Congressional Consultation Committee comprised of leaders from both houses, and a permanent bipartisan staff with access to national security intelligence. The proposed legislation also calls on Congress to vote yes or no on ‘significant conflicts’ within 30 days. If such a resolution fails, Congress may then legislate against the war, which legislation the president may veto, and Congress may override. Or it may take other actions, such as defunding the war.

This is clearly a step backward. It’s clearly a step in the direction in further empowering an out-of-control executive, at precisely the moment when conditions call for just the opposite tack. And it’s clearly what you’d expect from James Baker and Warren Christopher. Ugh.

It’s all well and good to force consultations, but they mean only as much as the participants want them to, which can range from the pro-forma ticking off of a box on the official Federal War Consultation Checklist Form to genuine negotiations in which assent by both sides is required by both sides in order to move forward. To get a very real and very proximate sense of just how toothless an idea this is, one need only ask oneself how the Bush administration would have conducted such negotiations over Iraq. You know, the very same people who withhold everything from Congress? The ones who refuse to even testify or provide any documentation in cases involving clear wrongdoing, including now the highest law-enforcement official in the land? Yeah, that’s right, Congress is now thinking about holding Attorney General Michael Mukasy in contempt for refusing to turn over information about the politicization of the Justice Department. And he’s the ‘good guy’ who was brought in to clean up after Alberto Gonzales (thanks a lot to ‘liberal’ New York senator Chuck Schumer for arranging that particular disaster).

Yeah, forcing consultations is a wonderful prescription, but no better than forcing a robust round of Kumbaya. Once it’s done and the box checked, the president will proceed to war, laughing all the way down Pennsylvania Avenue as he returns from the Capitol. Think of Warren Christopher, late at night, dentures soaking in the glass of water, gumming up some of the finest plain vanilla ice cream available, and you’ve got a pretty good image of the actual bite of this resolution.

Similarly, in what sense can this legislative formula be considered an improvement over the War Powers Act or the Constitution itself? Let’s just take the most ambitious outcome possible under this scenario, where Congress fails to approve the war, then passes a resolution condemning it, which of course would be vetoed by the president, and then Congress musters enough votes for an override. First of all, what slightest change does that represent from the current scenario, other than to force Congress to vote on the war within 30 days? It already has the power to legislate its disapproval, the president already has the power to veto that bill, and Congress already has the power to override the president’s veto. So what is gained here?

Second, what possible effect does this have on the current impasse over the War Powers Act? The next step which will follow a congressional override will always be the president flipping a finger in the direction of Congress, and I don’t mean a big thumb’s-up. Now Congress would find itself in precisely the same place it does today – quite literally, at the moment (sans the override part) – having to make hard choices in the face of presidential defiance, of which there are pretty much only three. One is to follow the Harry Reid / Nancy Pelosi approach to tough situations, which means to whimper and whine a lot while doing absolutely nothing. The second is to go to the Supreme Court to force the issue, whereupon the president will claim it as an unconstitutional infringement on his or her commander-in-chief powers, regardless of whether a previous president (or even the current one) had signed the legislation that Baker and Christopher propose. (By the way, chances are good that Congress would lose such a suit. If it was brought before the current court, chances are a whole lot better than good. Congress would be about as likely to prevail as would the opposition party in a North Korean election.) The third option is the one ultimately resorted to in the case of Vietnam, which would be to simply de-fund the war.

But if we want to take the full measure of how toothless Baker and Christopher seek to render Congress, we should consider their Trojan Horse in forcing Congress to take a position on the war during its first thirty days. That’s a bit like trying to sell abstinence right in the middle of some rowdy good sex. Let’s just say the incentives are all loaded in one direction. Remember how much bogus noise the right ginned up about ‘supporting the troops’ years after the Iraq invasion was launched, let alone weeks? There is hardly any time when politicians are less likely to oppose a war than the first thirty days after it’s begun. Then what happens after Congress has taken its mandatory vote and, of course, approved some foreign adventure launched by an insane president? It will only have a much harder time, not easier, to shut it off later, when it comes to its senses, or at least when its senses tell it that it is now safe to oppose the war. The president will surely argue that Congress has no business opposing a war it once supported.

Is it possible that the Commission didn’t realize all this? Sure. But it’s also possible that Dick Cheney doesn’t much care for money or power. Is it possible that James Baker – the guy who gave us the Bush Junior presidency by breaking all the rules of democracy in Florida and at the Supreme Court – would use the current desire to reign in a loose cannon presidency to present this plan as an improvement, knowing in fact that it would actually increase presidential power over war policy? Nah. Not Jimmy.

Clearly, this represents a step backward rather than a step forward when it comes to avoiding another Iraq scenario. Just replay the events of the last six years, with the same cast of characters – but this time under the plan proposed by the Baker-Christopher Commission – to see what would happen. The same members of Congress who voted for a bullshit war because they were afraid of the consequences to their careers if they didn’t would be far more inclined to vote for the war three weeks after the invasion began. And they would then have had an even harder time later climbing down off the limb they’d perched themselves on than they already do now. Beautiful. That’s just what we need.

In a very profound way, though, all of this is moot anyhow. So, okay, the president has the commander-in-chief power which is broadly supported (even in Congress), and unlikely to ever be even remotely diminished. This country fought brutal and massive wars in Korea for three years, Vietnam for a dozen, and Iraq will be for easily seven before the earliest we’d possibly get out – all without a declaration of war or any serious question of the presidential prerogative to deploy forces without one. Get the picture? Likewise, however, the one power that Congress possesses in an equally undiluted and uncontested form is the power of the purse. Congress can shut down any expensive war it wants whenever it wants by using that power, as it did finally in the case of Vietnam. All that’s necessary is the will to do so. Purses can be used in many different ways, depending on one’s commitment to doing what is right and one’s courage to follow though on that path, even at the personal cost of career or likability amongst the Cro-Magnon set. Harry Reid’s purse seems to have little use other than for transporting around a bit of eyeliner, some lipstick and maybe a few sanitary napkins. In better hands, it would be used it to flatten George W. Bush and end his Mesopotamian nightmare, pronto.

Which really brings us, ultimately to the heart of questions like these. You can spend an entire lifetime, and fill an entire library wing, with treatises and legal commentaries on these grand constitutional questions regarding the distribution of power in a government such as ours. (Most democracies use a parliamentary system, where the issue is moot. There are no checks and balances because there are no separate branches to check or to balance.) At the end of the day, though, you’re ultimately left with words written on ink in parchment. It doesn’t even require a single struck match to destroy their power (indeed, if they have such power, burning the documents will have zero effect). All that is necessary is for good people to do nothing, while monsters like Bush and Cheney drive freight trains through the edifices of Constitutional law constructed over centuries.

And that is precisely what has happened. There will always be Bushes and Cheneys, and history shows there always has been. This was perhaps the single most profound insight the Founders brought to Philadelphia as they engaged in their experiment in political engineering. They sought to design a government that was powerful enough to hold together and to act when necessary – unlike the one provided for in the Articles of Confederation – yet also sufficiently limited so as to protect their liberties – unlike George III’s regime. The Constitution really is a pretty amazing achievement from that engineering perspective. In any case, this concern for finding the correct concentration of power is certainly the motivation for the otherwise fairly bizarre decision they made to divide the government and set the pieces of it against one another.

The Founders also sought to create a government of laws, not men. A great aspiration, to be sure, though inevitably flawed at the end of the day. (I wish, for starters that they had aspired to a government not of people – rather than not of men, but of course it would be 150 years before fully half the population began to get its legal rights.) But their more critical flaw, for purposes of this particular discussion, is the belief that you can somehow take people out of government and leave only laws in their place to govern.

Unfortunately, people are not only the subjects of those laws, but also the keepers, promulgators and implementers. Laws, principles, rules, codes – these are all ultimately what people make of them, not what’s written on paper. If George W. Bush says that it is legal to waterboard detainees at Guantánamo and nobody stops him, that is what’s going to happen. If the majority on the Supreme Court abandon all their vociferously articulated prior principles of states’ rights, judicial restraint and hostility to equal protection claims in order to justify crowning Bush president – and, again, no one objects too strenuously – then off to the White House he goes. And if Congress is supposed to be an equal partner in war-making decisions but hasn’t got the guts to do its job, well then, welcome to Baghdad, soldier.

The whole matter was put rather succinctly by President Andrew Jackson once, when he was angered at a decision made by John Marshall’s Supreme Court holding that the state of Georgia could not impose its laws on Cherokee tribal lands. Jackson is quoted as saying “John Marshall has made his decision, now let him enforce it!”, thereby shredding the notion of a government of laws in a mere eleven-word sentence.

The truth is that there is no such thing as a government without people. There is no main-frame somewhere which can dispassionately compute matters of law and policy. It’s up to us, at the end of the day.

Either we stick to our principles – especially in moments of duress – or we don’t.

No oceans of ink applied to mountains of parchment, and certainly no new scheme concocted by James Baker and Warren Christopher, could ever save America’s Congress, or its press, or its opposition party, or its people, from the historical stain which has attached to them forever by virtue of their abdication of responsibility when it came to Iraq.

We had, in October of 2002, and in March of 2003, and today, and on every date in-between, a government of laws. The principles and codes and Constitution were all there.

It’s just the people who were missing.

David Michael Green is a professor of political science at Hofstra University in New York. He is delighted to receive readers' reactions to his articles ( dmg@regressiveantidote.net ), but regrets that time constraints do not always allow him to respond. More of his work can be found at his website, www.regressiveantidote.net .