Telling Bush his duty: Senate Judiciary Committee gears up for a confrontation with the White House

The constitutional groundwork is being prepared for a block on sending more troops to Iraq.  The lineup of Senators was pretty much the same, with Orrin Hatch allowing as how "the message we send" should be considered.  At which point a woman at the hearing stood up and confronted Hatch with her Marine son's third tour of duty.  Hatch "expressed sympathy."

Most interesting were the contributions of constitutional scholars at the hearing.  They were asked about not only stopping the Iraq "surge" but the possible extension of the conflict into Iran.

The panel heard from legal experts, who cited constitutional debates over conflicts ranging from the “quasi-war” with Napoleon in 1798 to peacekeeping missions in Bosnia and Somalia in recent years. No war seemed to hang more heavily over the hearing than Vietnam, where Congress brought American involvement to a close by cutting off financing.

Prof. Robert Turner of the University of Virginia suggested that Congress had made itself responsible for the deaths of the 1.7 million Cambodians estimated to have been slaughtered by the Khmer Rouge, by denying funds for President Nixon to wage war inside Cambodia. Similarly, he said Congress bore responsibility for the deaths of 241 marines killed by a suicide bomber in Lebanon in 1983 because it raised the question of forcing a withdrawal there.

Other experts testifying at the hearing said that Congress had the power not only to declare war, but to make major strategic and policy decisions about its conduct. Louis Fisher, a specialist in constitutional law for the Library of Congress, said, “I don’t know of any ground for a belief that the president has any more special expertise in whether to continue a war than do the members of Congress.” He said that the title of “commander in chief” was meant by the framers to emphasize unity of command and civilian control over the military. “The same duty commanders have to the president, the president has to the elected representatives.”

Walter Dellinger, once a top Justice Department official under President Clinton and now a professor of law at Duke University, said that “Congress does not have an all or nothing choice,” and can “validly limit the presidential use of force.” An example of unconstitutional Congressional interference, he said, would be an effort to force the president to choose certain generals. But a resolution to restrict future financing for deployment in certain places would be “fully within Congress’s powers,” he said.

Even as the panel discussed issues from past conflicts, Senator Kennedy used the session to focus on a possible future conflict, asking the panel about what authority Mr. Bush would have to attack Iran. The panel’s members agreed that he had the power to take what actions he saw fit to deal with any short-term threat that Iran might pose to American troops in Iraq, but that he would need some form of Congressional authorization to begin any large-scale or long-term conflict.

Arlen Specter made a good point.

“I would respectfully suggest to the president that he is not the sole decider,” Mr. Specter said. “The decider is a joint and shared responsibility.”

Heads up, Bubba.  They're comin' for you.