A War Waged Under False Pretenses
theday.com
By Scott Bates*
Editorial
Published on 2/18/2007
Our nation is in store for the greatest foreign policy disaster of our generation, with failure in Iraq a real possibility. Like a riverboat gambler who hopes to beat a string of bad luck by placing one more bet, the Bush administration's troop “surge” plan risks losing precious American lives and treasure with little chance of long-term success. Meantime, Congress looks on, acquiescing in the surge plan, raising non-binding objections but to no actual effect. Fatalism seems to grip congressional leaders.
Americans of another generation have seen this scene before: a president escalating America's involvement in a bitter civil war in a far away land, pouring in more blood and money to support allies of dubious strength and resolve; a Congress angered by presidential aggrandizement of power claimed for the sake of national security; and a people longing for success but weary of broken promises of victory. However, during the Vietnam War leaders in the United States Congress used their constitutional power to stop a president and put an end to a war that could not be won.
What lessons can today's U.S. Congress learn from its predecessors? How can today's Congress change course and help President Bush avert a foreign policy failure that could jeopardize our national security for decades?
The answer lies in the question of war powers. The president has asserted too much and the Congress, too little. The clearest example of this happened when President Bush announced he would ignore the advice of Congress concerning his troop surge plan, proclaiming that he was the sole “decision maker” when it comes to the conduct of war.
This is not the American system. During the Vietnam War, a federal appeals court held in Massachusetts v. Laird that “the Constitutional scheme envisages the joint participation of the Congress and the Executive in determining the scale and duration of hostilities.” Congress took this judgment to heart and moved to exert its authority in a way that can serve as a guide for us today.
A contract induced by fraud
Specifically, Sen. J. William Fulbright, speaking then about the Vietnam War, gave us the way forward from our dilemma in Iraq today. Fulbright said, “Now in contract law, a contract induced by fraud or mistake is voidable. Perhaps some analogous doctrine in Constitutional law should apply when statutory authority is given a President on the basis of fraudulent or mistaken representations.”
For Vietnam, it was the fraud of the Gulf of Tonkin incident. For Iraq, it was the administration's Iraq dossier, forced on the intelligence community, resulting in the National Intelligence Estimate. The United States Congress could end the war in the stroke of a pen by declaring that the Iraq War Authorization of 2002 is null and void since it was based on mistaken and/or fraudulent information.
Seeking Congress' authorization for war, President Bush told the nation, “Saddam Hussein has gone to great lengths, spending enormous sums and taking great risks to build and keep weapons of mass destruction.” Vice President Cheney told the American people just weeks before seeking authorization to invade Iraq, “Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction.”
More than four years later, we all now know the disconcerting truth. The 9/11 Commission found “no evidence of a collaborative operational relationship between Iraq and al-Qaida.” The Robb-Silberman Commission stated that those pushing the idea that Iraq had weapons of mass destruction were “dead wrong in almost all pre-war judgments about Iraq's weapons of mass destruction.”
The conclusion is that the bad intelligence President Bush relied upon to gain congressional approval for the use of force in Iraq in 2002 nullifies his war powers. The war aims of 2002 were predicated on two statements that proved to be wrong, namely that Saddam Hussein had weapons of mass destruction and that Iraq maintained operational links with al-Qaida. Sen. Fulbright's test for rescinding war powers has been met.
From a legal perspective, Bush's war powers in Iraq have been “ill-gotten,” Congress has the grounds for strong action and his role as sole “decider” on military issues should, for the sake of our national unity, come to an end.
Ultimately, rescission of war powers is only a means to an end. By restoring the balance of powers in national security envisioned by the nation's founders, Congress can then work with President Bush to develop a realistic plan to refocus and refine America's role in Iraq to targeting al-Qaida, training Iraqi security forces and removing our troops from the front lines of sectarian strife.
But with one-tenth of the Senate running for president, what is legally possible is not politically likely. What is clear, however, is that Congress could do much to strengthen our national security by rescinding the Authorization for the Use of Force in Iraq of 2002.
*Scott Bates is a visiting professor of national security law at Indiana University-Indianapolis and vice president of the Center for National Policy in Washington, D.C. He lives in Stonington. |
