With regard to the proposed legislation to end Public Law 107-243, the Authorization to Use Military Force Against Iraq (on 10/11/07, its fifth anniversary)…

(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.

…which was announced Thursday by Senators Byrd and Clinton, there is a good deal of very helpful analysis available in the April 17, 2002 testimony of Professor Michael Glennon to the Senate Judiciary Committee, here:

Http://judiciary.senate.gov/te…..wit_id=434

Because the stated objectives specified in the 2002 Iraq AUMF have all long-since either been met, or been found to be baseless, an important remaining concern of our legislators (and others) should the 2002 Iraq AUMF be officially repealed, may be whether the Executive Branch will endeavor to legally parse generic “terrorism” or Al Qaeda’s alleged presence in Iraq as justification under the 2001 9/11-caused AUMF (rather than the 2002 Iraq AUMF) to “legally” maintain our Armed Forces in Iraq, in defiance of the will of Congress.

With that in mind, Professor Glennon’s testimony is very helpful in highlighting the very limited, 9/11-specific authorization for force granted by the 2001 ‘terrorism’ AUMF, which almost certainly would not permit any alleged post-invasion “outbreak” of general terrorism in Iraq to be used as justification for keeping our military in Iraq. Some pertinent excerpts of his testimony (which took place, obviously, before we invaded Iraq):

To determine the breadth of authority conferred upon the President by this [2001 AUMF/S.J. Res. 23] statute, therefore, it is necessary to examine the legally operative provisions, which are set forth in section 2(a) thereof. That section provides as follows:

IN GENERAL—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The central conclusion that emerges from these words—which represent the only substantive provision of this statute—is that all authority that the statute confers is tightly linked to the events of September 11. The statute confers no authority unrelated to those events. The statute authorizes the President to act only against entities that planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. No authority is provided to act against entities that were not involved in those attacks. The closing reference limits rather than expands the authority granted, by specifying the purpose for which that authority must be exercised—”to prevent any future acts of international terrorism against the United States….” No authority is conferred to act for any other purpose, or to act against “nations, organizations or persons” generally. Action is permitted only against “such” nations, organizations or persons, to wit, those involved in the September 11 attacks.

With regard to any inherent Constitutionally-derived Executive Branch authority to use our military forces without the consent of Congress (as spelled out in a specific statutory authorization), Professor Glennon says:

It is difficult to read the primary sources, however, without drawing the same conclusion drawn by Abraham Lincoln. He said:

“The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

Chief Justice William Rehnquist (quoting Justice Robert Jackson) shared Lincoln’s belief that the Framers’ rejected the English model. He said: “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”

Notwithstanding the plain import of these sources of constitutional power, some argue that the only role for Congress occurs after the fact—in cutting off funds if the president commences a war that Congress does not support. Two problems inhere in this theory. First, it reads the declaration-of-war clause out of the Constitution as a separate and independent check on presidential power. The Framers intended to give Congress control over waging war before the decision to go to war is made. Giving Congress a role only after the fact, however, would make its power to declare war nothing but a mere congressional trumpet to herald a decision made elsewhere. Whatever else the Framers may have done to enhance the President’s power, surely they did not play the neat trick of giving Congress a war power that is really no power at all.

Second, the theory flies in the face of the Framers’ manifest intention to make it more difficult to get into war than out of it. This approach would do the opposite. If the only congressional option is to wait for the president to begin a war that Congress does not wish the nation to fight, and then cut off funds, war can be instituted routinely with no congressional approval—and seldom if ever ended quickly. The practical method of cutting off funds is to attach a rider to the Department of Defense authorization or appropriation legislation. This means, necessarily, passing the legislation by a two-thirds vote so as to overcome the inevitable presidential veto. The alternative is for Congress to withhold funding altogether—and be blamed by the president for closing down not merely the Pentagon but perhaps the entire federal government. The short of it is, therefore, that to view the congressional appropriations power as the only constitutional check on presidential war power is, for all practical purposes, to eliminate the declaration-of-war clause as a constitutional restraint on the president.

Glennon concludes:

The question before the Subcommittee today is whether, in the war against terrorism, Congress will allow the Presidency to be re-created in the image of George III.

[snip]

I commend to the Subcommittee, once again, the thoughtful formula devised by the Senate itself three decades ago [when the War Powers Act was being drafted]: the President may act alone in using force “to repel an armed attack upon the United States, its territories or possessions; to take necessary and appropriate retaliatory actions in the event of such an attack; and to forestall the direct and imminent threat of such an attack.” In all other situations, the President should proceed only if Congress has given its prior approval.

In short, Glennon’s careful analysis clarifies the binding effect that the Byrd/Clinton proposal (if carefully drafted) would have on the Executive Branch, and verifies that it would be a Constitutionally-valid restraint on the President’s use of our Armed Forces in Iraq.

The language that he cites above from three decades ago (from the Senate version of the War Powers Act), is obviously too broad and imprecise for today’s bad faith legal-parsing, power-mad administration, but the principle underlying it remains clear: without an actual attack from Iraq upon America or our [meaning the public’s, not those of global oil corporations’] “possessions,” or of an actual imminent threat of attack from Iraq upon us, the Commander in Chief must bring our Armed Forces home from Iraq, as soon as the 2002 AUMF has been repealed, and without any modification of the 2001 ‘terrorism’ AUMF needed. I very much hope other Senators will soon join Byrd and Clinton in this wise and vital effort to repeal the outmoded and obsolete (and absolutely unjustifiable by fact) 2002 Authorization to invade Iraq.

Is Goodling’s Attorney’s Assistant The DCMadam’s Assistant?

TeddySanFran has new post upstairs.

what scandals do you think would succeed in turning “the base” against Bush, short of a revelation that Laura is actually a guy?

The hardcore 25%? Nothing. They are hopeless.

http://www.washingtonpost.com/…..01671.html

LS @ 109

Check out this incredible post about Rove and all of his political “visits” to all the departments.

http://thinkprogress.org/

Ken Mehlman, former Republican National Committee chairman mentioned in the aforementioned ThinkProgress post, is a partner in the Akin Gump law firm that represents Monica Goodling.

And that suspended a secretary for “moonlighting.” Thx for the link to that story the other day. I wound up bringing it forward for two or three threads after first seeing it. Tried to give you credit but may have misspelled your name at some point.

OT: Just how much of a failure is George W Bush? Well, it’s already been widely reported that Time Magazine left him off their list of the 100 Most Influential people in the world. I got the issue today, and guess who still made the cut–Osama bin Laden.

And why not? Bin Laden is the only reason anybody still listens to Bush.